The Dangers of Selective Incorporation

Justice Hugo Black believed in total incorporation–he thought that all of the rights in the bill of rights should apply to the states.  In the end, we now use selective incorporation.

Today’s America takes it for granted that we all have equal rights.  We don’t and in fact our rights change, sometimes quite dramatically, whenever we cross state lines.  In 1800, when we were New Yorkers first and Americans second, it may have been acceptable for citizens of different states to have different rights, but today, when entering another state means driving down the highway or taking a train, it is unacceptable for our rights to change that easily.  Citizens of different states face radically different laws that greatly affect their lives, as well as different rights that are protected from the vagaries of the federal government but not from the states.

The Bill of Rights includes protection against excessive bails and fines and guarantees an indictment by grand jury for “capital or otherwise infamous crime[s],” and a trial by jury adhering to common law for any other case, yet these rights are not incorporated into state law.  These rights are fundamental parts of criminal law and it is absurd that they should not be incorporated.  They create an unhealthy situation in which it is up to the state to decide such basic things as whether accused criminals receive a trial by jury or whether it is okay to set a bail of $10 million for petty theft.  Other nonincorporated Amendments of the Bill of Rights do make sense – like that protecting (state) militias, prohibiting the quartering of troops, and reserving powers not delegated to Congress to the states or people.  As a whole, however, selective incorporation – besides laying the groundwork for uneven application of rights – makes the statement that the Bill of Rights isn’t important enough to be respected as a complete document and a complete guaranty to citizens of the U.S.  In a nation that reveres its Constitution, this is surprising and somewhat contradictory.

Other rights and practices also vary widely from state to state, such as tax law, marriage and adoption laws, and minimum wage and labor laws.  A married couple I know has to check a small printed guide every time they travel to remind themselves of whether they’re married, whether their children belong to both parents, and what would happen if one of them were injured in the states they pass through. My solution to this problem would be to abolish the autonomy of states and have one (large) national government with jurisdiction over provinces.  Provinces would be able to set their own practices and govern themselves but would be subject to uniform national laws.  In some areas of social law this would naturally lead to the nation being ahead of where it would be if it were still federal and in some areas behind.  Clearly the government is never going to change like this.  So while I and my friends prefer that same-sex marriage rights exist in some states but not all rather than not exist at all in the US, disparities like these greatly affect the very fabric of the nation. and ask whether Americans are truly free and equal.

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