Interesting constitutional issue
Apr. 10th, 2010 10:58 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
snousleSomething I just learned today - there exists a legal concept known as the "incorporation of the bill of rights" which compels state governments to respect the bill of rights in the Federal constitution. The flip side of this is that there have been, and perhaps still are, situations where state-level government is not compelled to respect those rights in the laws it enacts.
http://en.wikipedia.org/wiki/Incorporation_of_the_bill_of_rights
In particular, the second amendment (right to bear arms) has not been incorporated by the court.
I have no idea of whether this is of much practical importance, it just surprised me to learn it. The curious thing is how it affects the concept of "states rights" - giving rights to states, by invoking non-incorporation as a defense for an otherwise unconstitutional law, risks taking rights away from individuals.
It's also interesting to consider that the US constitution compels government to avoid infringing on the basic liberties of the bill of rights, but it does not compel individuals or private parties to do so. There is nothing in the constitution that explicitly forbids people with power over others from infringing on, say, their free speech rights. This seems like one of the most widely misunderstood aspects of the bill of rights - the mistaken notion that it safeguards these freedoms against all oppressors. Instead, it applies only to actions by the government.
This is why libertarian ideals don't sit right with me - libertarianism moves power away from governments, who are forbidden to restrict your liberty without due process, to private parties, who suffer many fewer restrictions. It is quite constitutional for, say, a local private hospital to deny you care because you have an "I Love Barbara Boxer" tattoo on your butt. When private power consolidates into a monopoly, freedom quickly vanishes.
Disclaimer: I am not very well versed in constitutional law, this is just some idle musing on a fairly complicated subject.
http://en.wikipedia.org/wiki/Incorporation_of_the_bill_of_rights
In particular, the second amendment (right to bear arms) has not been incorporated by the court.
I have no idea of whether this is of much practical importance, it just surprised me to learn it. The curious thing is how it affects the concept of "states rights" - giving rights to states, by invoking non-incorporation as a defense for an otherwise unconstitutional law, risks taking rights away from individuals.
It's also interesting to consider that the US constitution compels government to avoid infringing on the basic liberties of the bill of rights, but it does not compel individuals or private parties to do so. There is nothing in the constitution that explicitly forbids people with power over others from infringing on, say, their free speech rights. This seems like one of the most widely misunderstood aspects of the bill of rights - the mistaken notion that it safeguards these freedoms against all oppressors. Instead, it applies only to actions by the government.
This is why libertarian ideals don't sit right with me - libertarianism moves power away from governments, who are forbidden to restrict your liberty without due process, to private parties, who suffer many fewer restrictions. It is quite constitutional for, say, a local private hospital to deny you care because you have an "I Love Barbara Boxer" tattoo on your butt. When private power consolidates into a monopoly, freedom quickly vanishes.
Disclaimer: I am not very well versed in constitutional law, this is just some idle musing on a fairly complicated subject.
