Legal Commentary

We need to have a discussion about incorporation of the Bill of Rights in SCOTUS. Provisions of the Bill were incorporated against the states with ridiculous casualness in cases like Gitlow and Cantwell v CT. But there is a strong argument that the Bill ought to apply in different ways against different levels of government, based on the different risks that each level poses for liberty. The problem is that we rarely see this argument in SCOTUS.

For instance, I love Richard Epstein?s theories of takings ? but I do not want to see them nationalized, because I love local democracy more. Hathcock and Kelo, to my mind were BOTH rightly decided. And I think that I agree with the likely outcome in Heller ? overruling DC?s gun control ordinance ? but I do not want to see THAT Second Amendment doctrine imposed on the states, for the same reason.

The problem with nationalized rights is that we Americans disagree passionately about the scope of private liberty, and the enforcement of one person?s theory of fundamental liberties is often the abridgment of other person?s equally reasonable conception of liberty. Why not accommodate both sides through federalism?

Richard Epstein has a decent argument for a fairly strict and broad definition of ?private property.? But (as I noted in our exchange), a very reasonable person could object that We the National People never clearly endorsed such a radically nationalizing doctrine. Forcing such a rule down Our the People?s throats just because one can get 5 votes on SCOTUS strikes me as a denial of equal concern and respect to the views of those Americans who believe that Epsteinian ?property? deprives them of their ?property right? to environmental regulation. In other words, it could be that both Tahoe-Sierra AND Measure 37 in Oregon are both correctly decided.

How, then, to decide the degree to which some national liberty ought to be enforced against the states? Here?s a quick thought: Look to see whether there is some systemic failure of the state to protect one group of people?s rights because of ?lock-in? by a single political party or faction. Yes, I know: It is not an original idea. But it might be the Original understanding: remember that the 14th Amendment is really inspired by the freedman?s plight.

For instance, I would not enforce the Second Amendment against the states unless there was some showing that the state or city government had systematically failed to provide police protection to some subgroup within the jurisdiction. If crime is rampant in poorer areas of town, if the police are corrupt, lazy, or just plain incompetent in responding to 911 calls from the wrong side of the tracks, then maybe the self-help provided by the Second Amendment makes sense as an implementation of our right to equal protection. But, otherwise, I?d defer to the local majorities? conception of how best to insure each person?s right to personal security.

The alternative, of course, is to hope that your favorite version of liberty will win 5 votes from SCOTUS, defeating another plausible conception through sheer majoritarian power. But I guess that I think that such naked nationalistic majoritarianism denies what Jeremy Waldron calls our ?right of rights? ? our right to adopt differing conceptions of rights democratically.

At least, I'd like to see the Court think about this issue instead of blindly enforcing the Bill jot for jot against the states.