Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at http://ssrn.com/abstract=2374985

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  • The Doctrine of Incorporation

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    Last updated March 19, 2013

    The federal Bill of Rights was intended to apply solely to the federal government. The concept of such documents as bills of rights began with justice and liberty originating from the king. The people, deriving their rights from the king, needed the king to swear to a declaration of principles in order to preserve their derivative rights. With the Constitution, the states did not need a bill of rights because the people and the states gave the federal government its enumerated and limited authority.  If anything, the officers of the federal government needed the people and the states to swear to a declaration of promises for the officers’ benefit as federal government derives its powers from the people and the states.

    Because the powers of the federal government were limited and enumerated, the promises of the Bill of Rights were of little consequence. Many of the founding generation felt that the Bill of Rights was unnecessary, but for the same reasons, also harmless. In the end, as part of a compromise with the Anti-Federalists, the Bill of Rights was proposed to the states as amendments to the Constitution. The first ten amendments were ratified in 1791.

    Judicial activism arising under the Fourteenth Amendment gave us the doctrine of incorporation of the Bill of Rights against the states. The fiction of incorporation goes something like this: The liberty interests of the Due Process Clause of Section One of the Fourteenth Amendment protect fundamental law from state abridgement. The rights listed in the Bill of Rights are fundamental law, and therefore, they are incorporated against the states through the Due Process Clause or, for those who do not like substantive due process, through Section One’s Privileges or Immunities Clause.

    With the judicial enforcement of the Bill of Rights against the federal government and incorporated against the states, it is the judges’ “interpretation” of the Bill of Rights that is applied to (against) all (self-) government.  We have the federal judiciary saying to all local, state, and federal government, “you are prohibited from engaging in activity X or enacting law X under the Constitution.”

    This judicial interpretation frequently devolves into a series of fictions built upon fictions—none of which remotely resemble the text much less the original intent of the constitutional language. In the process, the judiciary has swallowed up common consent in government of life, liberty, and property.

    Before incorporation, the excesses of judicial interpretation of the federal Bill of Rights would have overly restrained the federal government from operation in affected areas.  The states and state bills of rights would be the direct beneficiary of excess judicial enforcement.  With incorporation, excess interpretation of the federal Bill of Rights robs federal, state, and local government from self-government.  The people and republican liberty give power to local, state, and federal government.  The judicial enforcement of the open-ended provisions of the bill of rights purports to protect the people from the people, which is equivalent to taking from the people any self-government conflicting with the judges’ interpretation of the vague principles underlying the bill of rights (and its penumbras).  The people are left with no ordinary recourse to fend off judicial interpretation of the open-ended principles of the Bill of Rights.

    A quote from an earlier post:

    Following the Fourteenth Amendment and the judicial incorporation invention, a self-executing Bill of Rights more or less applies to the states via the judiciary. And now we have activism run amok. The inversion of the Bill of Rights, from a high fence to curb feared federal centralization to a fortress for judicial power possessing a far greater centralization, has created and entrenched the very tyranny—in the hands of an oligarchy—the framers sought to avoid.

    George Mason and others objected to the federal Constitution because it did not, among other things, include a federal Bill of Rights.  Mason was worried that without a Bill of Rights, the federal government and the Supremacy Clause would swallow up state governments and state bills of rights.  With judicial enforcement of an incorporated Bill of Rights, the Anti-Federalists’ sacred Bill of Rights has created the very concern that Anti-Federalists feared.

    We the people have lost sovereignty over the essential liberties we originally intended to safeguard from the federal government.  As liberty and the fountain of justice are with the Court, it would be appropriate to demand that the divine judiciary swear an oath to a second bill of rights to protect the rights of the people and their representatives from arbitrary government by judiciary.

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