Incorporation: Structural Provisions vs. Individual Liberty Interests

Does the Nebraska Legislature have the power to declare war against, say, Iran or Canada? Could we argue that the answer is yes, because the power of Congress to declare war has been incorporated and applied to the states via the Due Process Clause of the 14th Amendment?

When talking about the Doctrine of Incorporation it is important to distinguish structural provisions defining the power of Congress--which are not incorporated--and individual rights deemed to be so fundamental as to support incorporation. In the words of Justice Stevens, "the idea of liberty" is the source of the incorporation doctrine.

Our class discussion will focus on incorporation of the Establishment Clause and we will try to determine whether the EC is a liberty provision, a structural provision, or in part the one and in part the other.

We will not spend much time talking about the cases in the casebook other than to point out the tests they employed for incorporation:

1. Palko--In Palko, the Court talks about incorporation of the "freedom" of speech, "freedom" of the press, and "freedom" of religion and says the test is whether an individual liberty interest contained in the Bill of Rights is "implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment becomes valid as against the states."

2. Duncan v. Louisiana--the test for incorporated individual liberties is whether the liberty in question is among the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," or whether the liberty is a "fundamental right" and "basic in our system of jurisprudence."

Does the Establishment Clause create a liberty interest? Or is it a structural limitation on the power of Congress to enact laws "respecting" an Establishment of a national religion? When the Court says that the EC forbids government from "endorsing" religion or "advancing" religion, is it recognizing a limitation on the power of government to, for example, express certain ideas in the public square, or creating an individual liberty interest?

If the latter, exactly what is the liberty interest protected? If the former, then how is it possible to talk about incorporation of a non-liberty, structural limitation on the power of "Congress?"

Is there a difference between a law requiring students to pray in the public schools and a city policy of having a Nativity display in a public park during the Christmas season? What is the difference in terms of incorporation of "liberty" interests?