The Good Bill of Rights

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Stephan, of all the interventions in the states from the federal government, the least damaging and smallest number are done in the name of the Bill of Rights. The 4th amendment incorporation mainly deals with issues that could just as easily be seen as addressed in the language of the “due process,” “equal protection,” and “privileges or immunities” clauses of the 14th amendment. As I’ve attempted to show — though not going into every case — many of the big incorporation cases could have happened just on the basis of the 14th. In a sense, I actually do understand why people think the 14th incorporates the Bill of Rights to make it bind the states. That’s because the 14th is so vaguely written, and I think it was meant to be.

I don’t believe in “incorporation.” I do believe the people should enforce the Bill of Rights against their own states. But I don’t think that, realistically, the Bill of Rights has, on balance, expanded the powers of the feds over the states and the people. To the extent it has, it has been a misreading.

Of course, the Bible and Declaration of Independence have been misread to the detriment of liberty. This doesn’t mean they’re bad.

12:34 pm on December 17, 2004