Incorporation Doctrine's Federalism Costs: A Cautionary Note for the European Union

20 Eur. J.L. Reform 129 (2018)

20 Pages Posted: 7 Sep 2018

See all articles by Lee J. Strang

Lee J. Strang

University of Toledo College of Law

Date Written: June 1, 2018

Abstract

In this article, I first briefly describe the U.S. Supreme Court’s decades-long process of incorporating the federal Bill of Rights against the states. Second, I argue that incorporation of the Bill of Rights has come with significant costs to federalism in the United States. Third, I suggest that the American experience provides a cautionary note for the European Union as it grapples with the question of whether and to what extent to apply the Charter of Fundamental Rights to its constituent nations. I end by identifying options available to the European Union to avoid at least some of this harm to federalism while, at the same time, securing some of the benefit that might be occasioned by incorporating the Charter.

Keywords: Federalism, Incorporation, Bill of Rights, European Union, Charter of Fundamental Rights

Suggested Citation

Strang, Lee J., Incorporation Doctrine's Federalism Costs: A Cautionary Note for the European Union (June 1, 2018). 20 Eur. J.L. Reform 129 (2018). Available at SSRN: https://ssrn.com/abstract=3240708

Lee J. Strang (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-2877 (Phone)

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