Interesting constitutional issue

[snousle]

Something 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.

Comments

[albadger.livejournal.com]

Well versed or not, you nail Libertarianism to a tree!

[snousle.livejournal.com]

I hasten to add that I consider this a narrow criticism - I have distinct libertarian sympathies, and greatly appreciate the analysis and pragmatism of many principled libertarians like Eugene Volokh. But it's not like I hear the words "free enterprise" and get all warm and fuzzy inside.

[albadger.livejournal.com]

Oh, I don't think it's narrow at all. As appealing as Libertarian aims are, you've identified the falsehood that the movement embraces but denies. And I'd never apply the adjective "principled" to Volokh. But maybe that's just me.

[furr-a-bruin.livejournal.com]

My favorite response to Libertarians is to ask them how, in the instance of a major corporation doing something heinous like polluting their groundwater, is a small town supposed to fight back against a multi-billion dollar behemoth chemical company? The individual citizens certainly don't have the resources - probably the entire town doesn't. The only organization that can possibly go toe to toe with an offender that big ... is the federal government.

Libertarianism has some good points - but lately it seems blind to the kind of power that's been amassed by corporations. We're not living in a 1950s world of mom-and-pop businesses anymore. It's not specifically a Libertarian thing, but any time I hear someone ranting about "government bureaucrats" with regard to the health care debate - I ask "what about HMO bureaucrats who aren't accountable to anything but profits?"

[snousle.livejournal.com]

I think that if you could populate a libertopia with calculator-wielding nerds that could negotiate elaborate contracts, the groundwater pollution problem could be solved in a fair and rational way between private parties. The solution which optimizes long-term welfare between rational actors might be "buy the water rights and let it go to hell", which IMHO would be unfortunate no matter how efficient it is. The problem is that such an approach is completely unforgiving of human weakness. The world is not made up of nerds with calculators.

In my own dream world, I'd seriously consider a hyper-libertarian approach to medical services, specifically by ending the AMA monopoly over physician accreditation. Deregulation of medicine is a slightly crazy idea, but I venture that it is considerably less crazy than the path we are on now, even with Obamacare.

What I appreciate about libertarianism in general is that despite the blowhards, it also presents itself as an incremental program progressing through small, low-risk steps. I don't see radical libertarianism as being the core of the philosophy, although I have no idea of the prevailing view among people who actually call themselves libertarians.

[broduke2000.livejournal.com]

I'm starting a rumor:

Tony has a tat on his butt that reads: "I ♥ Barbara Boxer."

[barbarian-rat.livejournal.com]

And that is the problem with "free enterprise" ... if it is not regulated by the feds, the large corporations will run right over us.