Total Incorporation of What?

Suppose you take seriously the comments by Justices Gorsuch and Kavanaugh in Timbs that the entire Bill of Rights applies to the States. Does that not mean that the Tenth Amendment is not part of the Bill of Rights?

To State the obvious, you cannot incorporate a states’-rights against states in any sensible way. One solution is to say that the entire Bill of Rights does not apply to the states, which is the Court’s current position. The other would be to read the 10th out and go with older cases that defined the Bill of Rights as the first 8 or first 9 amendments. It’ll be interesting to see if Timbs addresses this, though it need not.

You may also like...

4 Responses

  1. Trumpet Frederickson says:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Incorporating the Tenth Amendment means that you take out the words “states respectively, or to
    the” and admit the powers not delegated to the congress are actually reserved to the people themselves because that’s the only way the people (and not just their representatives) will actually have a say in their own lives.

  2. Joe says:

    Let’s wait for the Grand Jury Clause to be incorporated.

  3. Brett Bellmore says:

    This is not a difficult problem for textualist. Textually, the 14th amendment incorporates privileges and immunities, and the 10th amendment has to do with neither, it is simply a rule of interpretation.

    And even at that, is is a relentlessly ignored rule of interpretation. Before the Court would ever have to tackle the question of incorporating that amendment, they would have to decide to start enforcing it. And THAT would be a bigger change in constitutional jurisprudence than incorporation ever was.

  4. Joe says:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Another thought is that part of this is based on a idiosyncratic concern with niceties of labels. Just what could be “incorporated” here. For instance, some argue the 9A is a “rule of interpretation” too while others see it as a general means to protect unenumerated rights so that could be incorporated too.

    As applicable, there might be powers of “the people” that could be applied against state governments. As to ignoring the 10A, that tends to be a debate over specifics. So, we have an argument a federal lottery is not a fedearl power. But, that is far from clear. It can quite easily been seen as a part of the Spending Power, a means to obtain funds for various federal powers.

    So, if there is not enough funding for the Commerce Department to fund some project, I’m unsure why it could not be “necessary and proper” to use a lottery. Lotteries were traditional means to obtain funds for governmental projects. Why not applied here? Of course, there can be dispute to that, but it is a reasonable debate.

    (Let’s see if this comment is posted and viewable by me.)