Mark Franke: The Constitution’s ‘selective incorporation’


Every spring, I have the opportunity to serve as a judge in the American Legion’s national oratorical contest.

This contest began in 1938 to encourage knowledge of the Constitution among high school students. Contestants are sponsored by local American Legion posts and compete at ascending levels beginning with the district, zone and state levels. State winners compete at the national level. More than $200,000 in scholarships are awarded each year across the levels.

The students present a 10-minute oration on a constitutional topic of their choice. Then they are given a topic randomly drawn from a preannounced list and 5 minutes to prepare their next speech. Their score for the two speeches is based on their knowledge of the topic, the rhetorical structure of the speech and its persuasiveness and their presentation style.

Every year, I learn something new about the Constitution or at least am reminded of something I have forgotten. This year, it was the principle of selective incorporation. I am not ashamed to admit I had to do some online research afterwards to gain understanding of the doctrine and its application.

The principle originates in the 14th Amendment. This amendment is one of three adopted at the conclusion of the Civil War to abolish slavery and protect newly freed citizens, but there is a lot more in this amendment, such as due process and equal protection language. It specifically protects property rights and applies individual constitutional rights to the states. Or mostly applies them.

Selective incorporation is a court-developed doctrine that applies single amendments or even portions of an amendment on a case-by-case basis. For us laymen, this is a difficult concept to understand, yet there is clear court precedent for it, beginning in 1937.

If you are keeping score at home, this is how things stand with the first eight amendments in the Bill of Rights: Four amendments are fully incorporated at the state level, two are partially incorporated and two are not at all.

Make sense? At least the First Amendment, the most important one to my way of thinking, is fully incorporated and the law of the land for the states. In contrast, the Third Amendment prohibiting the quartering of troops in private homes without the owner’s permission is not incorporated, perhaps because it has never been an issue requiring court review. Partially incorporated is the Eighth Amendment’s prohibition of cruel and unusual punishment but not its protection against excessive fines.

There is another side to this constitutional coin: Interposition. Its layman’s definition is the authority of a state or local governing entity to refuse a federal law or ruling. Nullification is the extreme application of it.

Interposition has not fared well in our history, but it has been used. The Virginia and Kentucky resolutions of 1798 stated the federal Alien and Sedition Acts would not pertain there. More recently, several cities declared they were “sanctuary cities” and refused to assist in enforcement of federal immigration policies and related police actions.

Constitutional scholars can debate the theoretical aspects of this. My focus is on the practical and the question of its usefulness as a tool to get our nation out of its political gridlock. Can either or both be used to return the nation to the federalist principles underlying the Constitution?

Would it help or harm our union if more issues were left to local or state option?

Canada offers a possible model for this. Its Charter of Rights and Freedoms, adopted in 1982 with its new constitution, includes a “notwithstanding” clause that allows provinces to temporarily suspend federal legislation.

This is not, however, without controversy. The province of Quebec invoked the notwithstanding clause to refuse implementation of Bill 21, which prevents public employees from wearing religious symbols at work. Canadians are divided on this. The majority believe the notwithstanding clause damages national unity. Quebec, the province which has invoked the notwithstanding clause most often, is a cultural, linguistic and religious outlier in Canada, so perhaps that provides some insight.

Is full unity the goal of a democratic republic? Is unity more important than the exercise of individual liberty? Can it lead to a tyranny of the majority as current cultural czars impose uniformity even at the cost of religious freedom as in Quebec?

I am a classical liberal with moderate libertarian sympathies, so you can guess how I answer the questions above.

And the American Legion’s national contest winner? I didn’t hear her speech but learned she is from Indianapolis and plans to attend Patrick Henry College in Virginia, an ironic choice given that Henry opposed adoption of the Constitution. His opposition contributed to the promise of a Bill of Rights, subsequently drafted by James Madison.

Or maybe her choice of college is not so ironic. Patrick Henry was one inspiring public speaker.

Mark Franke, an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice chancellor at Indiana University-Purdue University Fort Wayne. Send comments to [email protected].

No posts to display