Incorporation, Federalism, and International Human Rights

Abstract

This essay introduces a new theory — the human rights theory — to help explain and justify the Supreme Court’s selective incorporation doctrine. The theory holds that a particular right binds the states under the Fourteenth Amendment if the right is included in both the U.S. Bill of Rights and the International Bill of Rights. The analysis supports four main conclusions. First, the human rights theory is generally consistent with the actual pattern of Supreme Court decisions in selective incorporation cases. Second, the concept of acculturation helps explain why there is a close fit between the human rights theory and selective incorporation doctrine. Third, in contrast to the Court’s decisions — which have failed to articulate a coherent rationale for the doctrine — the human rights theory provides a principled rationale for selective incorporation doctrine. Fourth, adoption of the human rights theory would return control over certain individual rights from the federal courts to the states, thereby alleviating the tension between selective incorporation doctrine and the Court’s professed commitment to principles of constitutional federalism. Contemporary political mythology holds that judicial application of international human rights norms would promote a liberal political agenda at the expense of constitutional federalism principles. In fact, this essay demonstrates that judicial application of international human rights norms in accordance with the human rights theory would promote constitutional federalism principles without advancing either a liberal or conservative political agenda.