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What is the incorporation doctrine, and will the Ron Paul campaign have a problem if journalists like Tim Russert (this Sunday on Meet the Press) ask Rep. Paul why he called it "the phony 'incorporation' doctrine, dreamed up by activist judges to pervert the plain meaning of the Constitution"?

The incorporation doctrine is the interpretation of the Constitution that says your rights under the Bill of Rights are guaranteed against infringement by the state governments the same way they're protected from the federal government.

"Huh?" you may be asking, "Wasn't it always that way?"

No. Before 1925, the Supreme Court said the Bill of Rights -- the first ten amendments to the U.S. Constitution -- did not apply to the states and did not limit the powers of the states in any way.

You probably find that hard to believe.

I certainly did.

That's why, in the course of writing the novel The 37th Amendment -- a thriller set in 2056, forty years after the due process clause is removed from the Constitution -- I did six years of research into the history of the incorporation doctrine.

And it's true:

-- In 1789, Rep. James Madison told the First Congress that a constitutional amendment was needed to guarantee that "No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases," but that amendment was defeated in the Senate and never became part of the Constitution.

-- In 1804, Thomas Jefferson wrote in a letter to Abigail Adams, "While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so."

-- In 1900, the U.S. Supreme Court ruled in the case of Maxwell v. Dow that the first ten amendments to the Constitution "were not intended to and did not have any effect upon the powers of the respective states," adding, "This has been many times decided."

Beginning in 1925 with the case of Gitlow v. New York, the justices of the Supreme Court began to rule that some parts of the Bill of Rights were so fundamental to the idea of due process of law that they were "incorporated" into the Fourteenth Amendment, which says the states cannot deny due process of law to any person.

The Fourteenth Amendment was ratified in 1868, so everyone who voted on it was long gone when the Supreme Court developed its view that the Amendment's due process clause made selected parts of the Bill of Rights binding on the states. As time went on, the Court drifted further and further from the original understanding, and today hardly anyone knows that the Bill of Rights was intended to limit the powers of the federal government but not the states.

So does that mean Dr. Paul is correct and the incorporation doctrine is just flat wrong?

Beware. Making this argument in politics could land you on the cover of Career Suicide magazine.

That's because for the last eighty years, the American people have relied on Supreme Court decisions, and the incorporation doctrine, as a substitute for constitutional amendments.

For example, there never was a constitutional amendment prohibiting race or gender discrimination, or establishing a right of privacy, or banning the states from abridging freedom of speech. There never was a constitutional amendment guaranteeing all the rights you hear about on TV shows like "Law and Order." It's the incorporation doctrine that forces the states to respect the Fifth Amendment right to remain silent, the Fourth Amendment right to be free from unreasonable searches and seizures, and the Sixth Amendment right to trial by jury in criminal cases.

Without the incorporation doctrine, all those federal constitutional rights would vanish from our state courts.

On the other hand, the incorporation doctrine has become the Supreme Court's license to second-guess local and state governments on everything from nude dancing to the death penalty, from prayer in the schools to the pledge of allegiance.

Here's how it works: The Supreme Court decides that some rights are so fundamental to the concept of due process of law that they cannot be abridged by any state unless there is a compelling reason. A rational reason isn't good enough.

The justices pick and choose which rights are fundamental and which are not, which reasons are compelling and which are only rational.

Justice Felix Frankfurter complained in 1947 that this was "a merely subjective test."

Not only is it subjective, it is paralyzing to state and local governments.

Because of the incorporation doctrine, virtually any state law can be challenged in federal court. Virtually any police procedure can be shut down by the threat of a federal lawsuit. Virtually anything enacted by state voters through a ballot initiative can be delayed for years while the federal courts weigh claims of fundamental rights and compelling reasons.

That's certainly not what the framers of the Constitution had in mind. It's a flat contradiction of the Tenth Amendment, which says the powers not delegated to the national government by the Constitution are reserved to the states.

But we'll never get rid of the incorporation doctrine, and the judicial governance that goes with it, unless we amend the Constitution to secure all the rights we think we already have. We'll have to ban race and gender discrimination. We'll have to fight it out over privacy rights. We'll have to decide which of the rights in the Bill of Rights should never be abridged by any state, and which ones should be left to local discretion.

Until that happens, criticism of the incorporation doctrine could be answered by campaign ads showing governors shutting down newspapers and police breaking down doors. That's unlikely to help Ron Paul get elected president.


Copyright 2007

For more information:

The 37th Amendment is a thriller about murder and justice set in the year 2056, forty years after the U.S. Constitution has been amended to remove the guarantee of due process of law (and the incorporation doctrine with it).

Following the novel is an essay titled "How the First Amendment Came to Protect Topless Dancing: A History of the Incorporation of the Bill of Rights into the Fourteenth Amendment, Why It's a Problem, and How to Fix It." Complete source notes and a bibliography are included.

You can read the complete essay, and the first half of the novel, free online at www.The37thAmendment.com. Or pick up a copy of the book at Amazon.com, BarnesandNoble.com, other online booksellers, or by special order at any bookstore. Ask for ISBN 0595230830 or ISBN-13 9780595230839.

If you're reading this post at Ron Paul campaign headquarters, drop me a note at Susan@ExtremeInk.com. Copies of the book are on me. Save your money for radio ads in California.

You might also be interested in reading "The cat, the bag and Justice Scalia," "The Secret Life of the Bill of Rights," "A Retirement Plan for Sandra Day O'Connor," "Why There is No Constitutional Right to Privacy, and How to Get One," and "Cornered: The Supreme Court's Ten Commandments Problem."

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