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Howard Wasserman has some helpful thoughts.
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Hi, Simon.. I have a
Hi, Simon.. I have a Constitutional question for you, regarding the Fourteenth Amendment and the incorporation of rights. I was wondering what the reasoning was by which the courts applied incorporation not only to the states, but also to municipal governments.
The Amendment clearly refers to what "States" can or can't do, not what cities or counties can do. "No State shall make or enforce any law...", "nor shall any State deprive..." Is this just a matter of courts determining that the intent of the amendment was to apply to all lower levels of government and not just "States" in particular?
I've never really thought
I've never really thought about it. I suppose that sub-state structures of government could be treated as subsidiaries—even creatures—of the state. Although, now you mention it, if that is true, that would imply a strangely assymetrical doctrine, in the sense that counties don't enjoy sovereign immunity (e.g. Northern Insurance v. Chatham). Interesting question, I'll have to think about it.