Gregory wrote: “Overall, the Bill of Rights has rarely been used to rationalize actions that are problematic to principles of federalism, and when it has, the power grabs would have likely come anyway. The 14th Amendment, Commerce Clause, and other provisions are used, and when the Bill of Rights has been cited, it has usually been more of a secondary argument that I think the federal courts have not relied on all too much.”
It seems to me that when state laws are struck down by the Courts as violating provisions of the Bill of Rights (as “incorporated by” the 14th)–such as 4th amendment cases–then the Bill of Rights is indeed “rationalizing” (or justifying) federal action that clearly abrogates federalism.
Gregory also says, “The feds are too afraid to “incorporate” the entire Bill of Rights out of fear of “reverse incorporation” – the nutty idea that the Bill of Rights, which was meant to apply to the feds, and was later thought to apply to the states, does apply to the feds, after all (imagine that!).”
This is an interesting theory but it assumes most of the Bill of Rights has not been incorporated. As pointed out here, “Since the early 60’s, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment).”12:15 pm on December 17, 2004 Email Stephan Kinsella