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Tenth Amendment Center: Justice Fight Another Knock on the Incorporation Doctrine

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September 29, 2020

...from Tenth Amendment Center

The looming fight over the next Supreme Court justice reveals yet another problem with the dubious incorporation doctrine.

No sane system would invest this much power in 9 politically-appointed lawyers. But that's exactly what the incorporation doctrine has given us.

@mmaharrey10th #supremecourt #constitution #10thAmendment #decentralize #scotus pic.twitter.com/HjCdLY0cXE

— TenthAmendmentCenter (@TenthAmendment) September 28, 2020

The incorporation doctrine sounds good in theory. Supporters believe the Court will protect your liberty from state and local tyranny. But in effect, it has centralized even more authority at the federal level and given nine politically connected lawyers far too much power.

For Further Reading

The Incorporation Doctrine Broke the Constitutional System

The Incorporation Doctrine and the Bill of Rights

Retired Supreme Court Justice Shows Danger of Trusting Federal Courts with Incorporation

The post Justice Fight Another Knock on the Incorporation Doctrine first appeared on Tenth Amendment Center Blog.

Mike Maharrey
September 29, 2020 at 03:39PM

Tenth Amendment Center

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Tenth Amendment Center: Was Justice Scalia an Old Originalist?

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Tenth Amendment Center: Was Justice Scalia an Old Originalist?

September 28, 2017

...from Tenth Amendment Center One of the standard distinctions these days is between the old originalism and new originalism. While different people define the distinction a little bit differently, I define the old originalism as having two essential characteristics: using “original intent” to determine the original meaning of a provision and a belief that significantly constraining judges is essential to the task of originalism. The newer originalisms – I use the term “newer originalisms” rather than the “new originalism” because new versions of originalism differ from one another – have abandoned these two characteristics. The newer originalisms tend to focus on the original public meaning – focusing on a more textual than intentionalist approach. And the newer originalisms no longer hold (or act like) significantly constraining judges is essential. If the original meaning is permissive – if it is unclear, vague, or delegates power to judges – then that is the original meanin

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Tenth Amendment Center: Justice Fight Another Knock on the Incorporation Doctrine

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