States, Courts, and Common-Good Conservatism
This essay is part of an ongoing partnership between Law & Liberty and the James Wilson Institute on Natural Rights and the American Founding. Essays in this series explore the rich interplay among law, governance, and political philosophy.
A step in the right direction.
The incorporation doctrine has corrupted all Constitutional thinking, at least in our law schools. It does so by viewing the Constitution as a power sharing agreement instead of a means to securing our natural rights as declared in thee Preamble of the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Does the First Amendment apply to the states? No. It refers to the US Congress. On the other hand, does anyone (besides Democrats) really believe that the State governments, or any government for that matter, have the authority to abridge our freedoms of speech or religion? I would hope not. The question, then, is not may the States abridge our rights but what are the Constitutional checks and balances for mitigating such tyrannical tendencies? If the US Courts have a such a role, then what are the Constitutional and structural checks and balances for mitigating their tyrannical tendencies?
This essay tippy toes towards the right question.