Incorporation doctrine is the idea that the Due Process clause of the 14th Amendment incorporates,
applies to the states, the Bill of Rights.
So the Free Speech clause was originally enacted in 1791 and everybody agreed and agrees that
it applied to just the federal government.
But incorporation was a process by which the Supreme Court, in its precedent, identified
the Due Process clause as applying the First Amendment, the Second Amendment, et cetera,
against the states.
Now, the incorporation doctrine was, is, generally been viewed as an unmitigated good that who
wouldn't want states to be limited by the free speech clause.
And in some scholarship myself, I tend to agree with much of that sentiment, but I also
want to identify that there are limits and there are costs to the incorporation doctrine.
And in particular, one of the costs is harm to the structural principle of federalism.
Federalism is the deeply entrenched structural principle in the United States that different
states have residual and continuing governing authority over their individual citizens.
And that those states can take different approaches to how they and their citizens live their
lives.
And so Incorporation is a one size fits all application to all those different states.
So think, for example, the context of criminal procedure, there are lots of nuanced, empirically
important, empirically contested judgements about the scope of criminal procedure rights
that both suspects and then defendants should be entitled to.
The Supreme Court in a series of cases, especially during the Warren Court era, applied through
the incorporation doctrine, a series of the Bill of Rights regoverning criminal procedure
to the states.
Now, there may be many reasons why that's good, but one of the costs is that there are
lots of differences among states.
And one of the benefits of these differences or one of the implications of these differences
is that there could be reasonably different approaches to criminal procedure in the different
states.
And that the one size fits all denies states the ability to be able to respond to these
different circumstances as their circumstances see fit.
A second cost to federalism of the one size fits all incorporation doctrine is that if
you think that there are reasonably different ways for human beings to live together in
a community and to pursue individual flourishing, which is part of the natural law tradition,
there's lots of diverse ways that people can pursue their good, then it would often be
the case that different communities will structure their laws differently; that some will have
more robust free speech protection, and some will have less free speech protection.
There may be a view that I think is probably ideal, but that isn't necessarily the view
that would apply to all times and places.
So it's no surprise when you look internationally, that there are a variety of different approaches
to the protection of free speech.
But with the incorporation doctrine, you have a one size fits all.
And I think it's fair to say that American free speech law is very protective of free
speech.
And that's a view that I actually think is normatively attractive, but that doesn't mean
that there couldn't be other communities for serious reasons, for sound reasons, for good
reasons, that might have an approach that protects free speech, but at the same time
also protects other values that might otherwise be in tension with or submerged by the robust
free speech doctrine that is now applicable to all the states.
So incorporation doctrine is something that applies one size fits all and thereby undermines
the ability of states to meet the goals and needs of reasonably different ways of pursuing
human flourishing and prohibit states from applying and protecting rights in a way that
would be consonant with their circumstances.
Now that's not a defense.
What I've just said is not necessarily a reason to reject the incorporation doctrine, but
it is an identification of reasons to be cautious about it, especially in a country as large
and as heterogeneous as the United States.