Constitutional Primer #5
The 14th
Amendment and “Selective Incorporation”
by Timothy B. Lewis of the Constitutional Freedom Foundation
Now that we have set the basic groundwork, we should focus
on how our constitutional form of government was changed so radically
without any democratic input. To set the stage, however, we need
to review the original intent behind the 1st Amendment
and discuss the first U. S. Supreme Court case dealing with the
Bill of Rights -- Barron v. Baltimore.
[1]
The Original
Intent Behind the 1st Amendment
Consider the exact language of the 1st Amendment:
“Congress shall make no law respecting
the establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”
I think most people today would tend to look at that language
as representing the idea that (1) the rights discussed therein
are so important that they should be looked at as absolute
rights, (2) the government should take a totally hands-off approach
to them and (3) this is some sort of global philosophic statement
of principle that should apply to all governments everywhere.
This seems to be the practical upshot of the U.S. Supreme Court’s
approach to them over the last 75 years or so. But could there
be a different meaning intended by the explicit prohibitive nature
of the language?
As discussed in prior articles, what was the principle fear
of the people when they decided to jettison the Articles of Confederation
and create a new and stronger form of central government? They
feared they might go too far and create too strong of a central
government. The bulk of the Federalist Papers were dedicated
to refuting the arguments of opponents to the proposed Constitution
whose central argumentative theme was this very concern. In light
of this fact, it makes perfect sense that the foregoing prohibitive
language was only directed at the federal Congress and admits
no exceptions whatsoever.
In other words, they wanted to make sure they kept in check
this new federal government they were creating. They did not
want it to have any power whatsoever to regulate issues
of religion, speech, press, assembly, or petition–not because
they thought no level of civil government should ever have any
power over such things, but rather, because the people themselves
wanted the sole and exclusive power to make all the decisions
within their own respective state boundaries concerning what those
rights entailed and what limits must apply for the sake of preserving
the type of civil society they wanted. Consider again in this
regard, the verbiage of the 10th Amendment which states:
“The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively,
or to the people.”
If they really thought that no government anywhere should ever
have any power to limit such rights, then why didn’t they say
“Congress and the states shall make no law...” instead
of just “Congress shall make no law...” as the lead in words to
the 1st Amendment? It would have been the perfect
time to make such a universal philosophic statement, but they
didn’t--and I think the fact that they didn’t, is very telling.
After all, other parts of the Constitution specifically restricted
state action (e.g. they were specifically prohibited from printing
money, impairing contracts, issuing bills of attainder, etc.)
So why didn’t the framers similarly limit the states regarding
the things contained in the 1st Amendment? The answer
is simple – they had no intent to handcuff the states regarding
these issues. The states were free to handle these issues however
the people of those states desired through their own state constitutions.
This was not the product of oversight since on June
8, 1789
in the House of Representatives; James Madison’s initial exposition
of proposed amendments to form a federal Bill of Rights included
the following suggested addition:
“No State shall violate the equal rights
of conscience, or the freedom of the press, or the trial by jury
in criminal cases.” [2]
In explanation of his recommendation, Madison said:
“I wish, also, in revising the Constitution,
we may throw into that section, which interdicts the abuse of
certain powers in the State Legislatures, some other provisions
of equal, if not greater importance than those already made.
The words, ‘No State shall pass any bill of attainder, ex post
facto law,’ etc., were wise and proper restrictions in the
Constitution. I think there is more danger of those powers being
abused by the State Governments than by the Government of the
United States. The same may be said of other powers
which they possess, if not controlled by the general principle,
that laws are unconstitutional which infringe the rights of the
community. I should therefore, wish to extend this interdiction,
and add, as I have stated in the 5th resolution, that
no State shall violate the equal right of conscience, freedom
of the press, or trial by jury in criminal cases; because it is
proper that every Government should be disarmed of powers which
trench upon those particular rights.” [3]
Obviously, no such handcuffs on state governments made it into
the final version of the first ten Amendments forming the Bill
of Rights. Hence the majority chose to leave such matters to
the people of the various states and their state governments to
determine for themselves.
Barron v.
Baltimore:
The Bill Of Rights Only Served as Handcuffs Against Federal Government
Action
Now let us consider the case of Barron v. Baltimore.
With how often the Court deals with Bill of Rights cases today,
it is interesting to note that it took over forty years for the
Court to hear its first Bill of Rights case.
Barron owned a wharf in the Baltimore harbor. The big ships could dock
there since his was one of the deepest parts of the harbor. The
city of Baltimore renovated its streets to improve their
drainage. However, this changed the normal drainage patterns
into the harbor and caused sand and silt to build up at Barron’s
docks in such as way that the big ships could no longer dock there,
thus diminishing the value of his property.
He sued the city for his loss in value under the takings clause
of the 5th Amendment. The city defended by arguing
that the 5th Amendment only applied to the federal
government and not lower governmental subdivisions like the city
of Baltimore.
In his last written opinion as a member of the U. S. Supreme
Court, and on behalf of the unanimous court, Chief Justice John
Marshall agreed with the city of Baltimore and held that the 5th Amendment
only applied to the federal government. He said that Maryland was free, of course, to adopt a similar
provision in its own state constitution if it wished, but that
was up to the people of Maryland to decide for themselves.
He observed that since the main body of the Constitution contained
several specific prohibitions against the states, all general
prohibitions must be interpreted as applying only to the federal
government and not to the states. So effectively, since none
of the first eight Amendments dealing with individual rights contained
any specific references to the states, they only applied as restrictions
against the federal government.
This conclusion is bolstered by the fact that Madison’s original proposal for Amendments
contained some specific prohibitions against the states which
were all stripped out of the final version as discussed above.
Commenting on the holding in Barron v. Baltimore, in
1949 Professor Stanley Morrison said: “The correctness of this
decision has never been seriously questioned....”
[4]
The Civil
War Amendments
Now let’s fast-forward to the Civil War. After the war was
over, Congress and the states passed the 13th Amendment
which did away with slavery everywhere in the United States. The southern states did not whole-heartedly
embrace this idea and treated the newly-freed slaves as second-class
citizens. So the 14th Amendment was proposed to further
constrict the southern states and force them to grant the newly-freed
slaves every right enjoyed by the white citizens of those respective
states.
The critical portion of the 14th Amendment reads
as follows:
“All persons born or naturalized in
the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection
of the laws.”
In an excellent and exhaustive law review article by Charles
Fairman entitled Does the Fourteenth Amendment Incorporate
the Bill of Rights? – The Original Understanding,
[5] Professor Fairman made
a very compelling case for the proposition that those who voted
to adopt the 14th Amendment (adopted in 1868)
only intended to ensure that the recently freed slave had the
same rights as everyone else did where he or she resided. They
did not intend to generally circumvent traditional notions of
federalism outside of this context. They did not intend to reverse
the landmark U.S. Supreme Court case of Barron v. Baltimore
discussed earlier. They did not intend to nationalize all rights
but simply wanted to make sure that whatever rights were recognized
in the various states, applied to all people equally within those
states regardless of race.
However, that view was to radically change in the early part
of the twentieth century as one by one, the Supreme Court would
extend the application of various parts of the Bill of Rights
against the states under what later became known cumulatively
as the “selective incorporation doctrine.”
For those who are interested in examining this issue in more
detail, an extensive summary of that 130- page law review article
can be found on the website of our foundation.
An Example
of Doing Things the Correct Way: Women’s Suffrage
Before discussing how things went wrong, let us consider how
changes are supposed to occur in our basic constitutional law.
Were one to take a liberal interpretation of the 14th
Amendment verbiage quoted above, couldn’t one interpret it to
require the states to grant universal suffrage, or the right to
vote regardless of sex?
But that was not intended by the drafters or those who ratified
of the 14th Amendment. So how did the change finally
come about? – By ratification of the 19th Amendment
in 1920.
This is the pattern that should have been followed if we wanted
the Bill of Rights to apply against the states as well as against
the federal government. But that is not how it came about.
Jefferson’s
Warning, Prediction and Rule of Interpretation
In order to tie in the rest of this discussion with the prior
articles, I will repeat a Jefferson quotation from one of them:
“It has long, however, been my opinion,
and I have never shrunk from its expression,... that the germ
of dissolution of our federal government is in the constitution
of the federal judiciary; an irresponsible body, (for impeachment
is scarcely a scare-crow,) working like gravity by night and by
day, gaining a little today and a little tomorrow, and advancing
its noiseless step like a thief, over the field of jurisdiction,
until all shall be usurped from the States, and the government
of all be consolidated into one. To this I am opposed; because,
when all government, domestic and foreign, in little as in great
things, shall be drawn to Washington as the center of all power,
it will render powerless the checks provided of one government
on another, and will become as venal and oppressive as the government
from which we separated.”
[6]
One of the best illustrations of the fulfillment of his prediction
can be found in the Supreme Court’s mis-interpretation of the
14th Amendment. Another illustration can be found
in the Commerce Clause interpretation which will be discussed
in the next article.
Jefferson predicted the usurpation of power
from the states would take place gradually and noiselessly and
ultimately culminate in quite a shocking cumulative result. And
so it was, with the court’s interpretations of the 14th
Amendment.
Please also recall what Jefferson said about interpretation:
"On every question of construction
[of the Constitution] let us carry ourselves back to the time
when the Constitution was adopted, recollect the spirit manifested
in the debates, and instead of trying what meaning may be squeezed
out of the text, or intended against it, conform to the probable
one in which it was passed."
[7]
Remember too Joseph Story’s first and fundamental rule of interpretation:
“The first and fundamental rule in
the interpretation of all instruments is, to construe them according
to the sense of the terms, and the intention of the parties [who
drafted them.]”
[8]
So, with respect to an Amendment, we should look back to the
drafters and adopters of that particular Amendment, which is what
Professor Fairman did in his law review article.
When, Where,
and How Did The “Selective Incorporation” Doctrine Get Started?
With all of that background and review, finally we are to the
point where we can discuss how things went wrong with constitutional
interpretation.
In an excellent companion law review article to Professor Fairman’s,
Professor Stanley Morrison said the following about the 1897 case
of Chicago, Burlignton & Quincy R.R. v. Chicago:
“The issue was raised whether a state
had violated the Fourteenth Amendment by condemning property of
the railroad without making just compensation. The Court asserted...that
the taking of property of the railroad without making just compensation
would violate the Fourteenth Amendment....The principle asserted
would have been obvious if the Fourteenth Amendment incorporated
the Bill of Rights, because the Fifth Amendment says that private
property shall not be taken for public use without just compensation....[The
Court], however, did not reach [its] conclusion by this line of
reasoning but did so through an assertion of the doctrine of substantive
due process. The assertion of this doctrine, incidentally, gave
to the Fourteenth Amendment an importance vastly greater than
it was supposed to have in 1868 [when it was adopted.]” [9]
All of a sudden the “due process clause” took on a very expansive
meaning. Even though the adopters of the Fourteenth Amendment
did not intend to overturn Barron v. Baltimore, effectively
the Supreme Court did so through judicial activism.
In Gitlow v. New York,
[10] a communist party official was convicted
by a New York court of violating the state’s criminal
anarchy statue. One of his contentions was that the state statute
violated his 1st Amendment rights as applied against
the states under the 14th Amendment. In addressing
this issue, the court simply said:
“For present purposes we may and do
assume that freedom of speech and of the press–which are protected
by the First Amendment from abridgement by Congress–are among
the fundamental personal rights and ‘liberties’ protected by the
due process clause of the Fourteenth Amendment from impairment
by the States.”
That wasn’t much of an explanation to justify the expansion
of federal power at the expense of the states. However, this
new judicial thinking would slowly strip away the states rights
to make authoritative decisions about what rights exist and how
they should be interpreted, applied, and limited.
Perhaps this fundamental change was little noticed since the
Supreme Court upheld the New York conviction. In other words, it didn’t
find any 1st Amendment problems with the state statute.
Had it overruled the New York law, perhaps it would have been more
of a concern to people. But by saying what it did, the camel
put its proverbial nose in the tent and as the saying goes, it
won’t take long for the camel to muscle his way all the way into
the tent once his nose is inside. In effect, on a case-by-case
basis, the U.S. Supreme Court started judging how fundamental
a particular right was and started taking control over those it
felt to be most fundamental and important, leaving to the states
the relatively inferior ones. As mentioned earlier, this has
been called the “selective incorporation doctrine.”
What About
the Fact That the Due Process Clause of The 14th Amendment
Is Identical to That of the 5th Amendment?
The 5th Amendment says in part:
“No person shall...be deprived of life,
liberty, or property, without due process of law....”
The 14th Amendment says in part:
“...nor shall any State deprive any
person of life, liberty, or property, without due process of law....”
Since the 5th Amendment was added at the same time
as the other nine Amendments in the Bill of Rights, it is reasonable
to conclude that whatever its “due process clause” was intended
to mean, was different from the other things covered by its companion
Amendments. Otherwise, what would be the purpose of those other
companion Amendments?
For example, if the word “liberty” in the due process clause
was meant to include freedom of speech, or freedom of religion,
etc., wouldn’t the 5th Amendment effectively nullify
the 1st Amendment? According to the 1st
Amendment, “Congress shall make no law respecting” those liberties.
As discussed earlier, this admits of no exceptions and serves
as an absolute prohibition against the federal government. But
if the 5th Amendment’s due process clause concerning
“liberty” is interpreted to include the freedoms of speech and
religion, then wouldn’t it enable Congress to limit those freedoms
so long as “due process” was observed? – and wouldn’t that violate
the express provisions of the 1st Amendment?
It seems more reasonable to conclude that the due process clause
was directed at something other than freedom of speech, etc.
If that was the meaning of the due process clause in the 5th
Amendment as it applied to the federal government, it would be
unreasonable to conclude that it meant anything different when
virtually the identical phrase was used in the 14th
Amendment to similarly handcuff the states.
In other words, contrary to the Gitlow holding, it
is not reasonable to conclude that those who voted to adopt the
14th Amendment intended to impose any limitations on
the states’ former abilities under the 10th Amendment
to regulate speech however they deemed appropriate. If they wanted
to do that, they would have addressed the issue more directly
in specific verbiage similar to that found in the 1st
Amendment, but they didn’t.
Stanley Morrison’s
Law Review Article
Whereas Professor Fairman’s Stanford Law Review article focused
on the original intents of those who adopted the Fourteenth Amendment,
Professor Stanley Morrison’s companion article focused on how
the Supreme Court dealt with the Fourteenth Amendment through
interpretation. All of the quotes in this section come from Professor
Morrison’s article.
Concerning the Supreme Court’s interpretation of the Fourteenth
Amendment in the Slaughter-House Cases of 1873, Morrison
observed:
“A Louisiana statue had given to a certain corporation
the exclusive right to operate slaughter-houses within the city
of New Orleans. The constitutionality of the statute
was attacked by other butchers of the city. Due process received
little notice in the case. It was argued primarily that the right
to engage in this business was a privilege or immunity of the
butchers of New Orleans which they held as citizens of the United
States, and that this privilege or immunity was abridged by a
statute which awarded to others a monopoly of the business. The
issue thus raised was one of the most important ever presented
to the Supreme Court. The argument ran that all rights which
a citizen had before the Fourteenth Amendment were privileges
or immunities which he now held as a citizen of the United States,
regardless of whether the right in question existed or was given
under state law or federal law, or existed against the state or
Federal Government. If this view had been accepted, no important
individual rights existing at the date of the Amendment could
thereafter have been altered by the state [of Louisiana.] All such existing rights would
have been frozen, subject only to the power of Congress under
Section 5 of the Fourteenth Amendment. The effect would have
been the practical destruction of states’ rights and the end of
the federal system as we know it.
“This interpretation of the privileges
and immunities clause was rejected by the Supreme Court....The
opposing view, which the Court did adopt, was that the ‘privileges
or immunities of citizens of the United States,’ within the meaning
of the clause, included only such rights as are possessed by citizens
of the United States because of their United States citizenship
as distinguished from state citizenship.....
“...It was only after this failure
that the proponents of constitutional change shifted the line
of attack to the proposition that the [14th] Amendment
incorporated the Bill of Rights and so made the provisions of
the first eight Amendments applicable to the states.” [11]
Concerning Spies v. Illinois
[12] (1887), Morrison observed:
“Counsel contended that although originally
the first ten Amendments were adopted only as a limitation on
federal power, yet so far as they secure and recognize the fundamental
rights of man they make them privileges and immunities of the
man as a citizen of the United States, and hence such rights cannot
now be abridged by a state under the Fourteenth Amendment....In
spite of the argument made, the broad issue of incorporation was
not passed upon by the Supreme Court in Spies v. Illinois
for the reason that the case was disposed of on other grounds.
“The opportunity soon came, however,
for a renewal of the argument. Three cases came up in 1890, 1891,
and 1892....” [13]
The argument made in Spies was ultimately rejected in
Kemmler
[14] (1890) where the court said:
“The Fourteenth Amendment did not radically
change the whole theory of the relations of the state and Federal
governments to each other, and of both governments to the people....”
Concerning a dissenting opinion in the 1892 case of O’Neil
v. Vermont [15] , Morrison observed:
“Here then, in 1892, we get the first
intimation from any Justice of the Supreme Court that the Fourteenth
Amendment might be considered to incorporate the Bill of Rights.
In view of the long line of cases beginning in 1875 in which
the question [of incorporation] could have been raised, and in
view of the fact that the judges who were sitting on the Court
during this seventeen-year period were all mature men when the
Fourteenth Amendment was adopted, the conclusion is irresistible
that it was not generally supposed that the Amendment incorporated
the Bill of Rights.” [16]
“...If the framers of the Amendment really did intend to incorporate
the Bill of Rights, it is obvious that they chose language which
was designed to conceal their purpose, not to express it. This
in itself casts suspicion upon the whole theory of incorporation.
It must always be remembered that the extension of the Bill of
Rights to the states is no minor matter. It would impose drastic
limitations upon the state governments in fields theretofore left
to the state constitutions. It would involve a corresponding
extension of the federal judicial power over the states, and even
of congressional power, in view of the power of enforcement given
to Congress by Section 5 of the Amendment.” [17]
“...The [incorporation] theory does not appear even to have
been presented to [the Supreme Court] in the argument of counsel
until 1887. It did not receive the support of any Supreme Court
judge until 1892. Between 1868 [the date of the Fourteenth Amendment’s
adoption] and 1947, only three judges of the Court favored the
doctrine, one of whom shortly recanted. On the other side are
the large number of judges [thirty-one according to footnote #39],
many of them eminent, who listened to argument and voted on the
question. Some of these were mature men when the Fourteenth Amendment
was adopted. The reaction of these men, as well as the failure
of counsel in the earlier cases even to raise the question, affords
ample proof that if the Amendment was designed to incorporate
the Bill of Rights, this was not generally known to its contemporaries.”
[18]
“...the [incorporation] theory can be regarded as nothing more
than a bald attempt to amend the Constitution by judicial fiat.”
[19]
In commenting on how many changes would have to have been made
to state constitutions and statutes if the Fourteenth Amendment
truly did incorporate the Bill of Rights, Morrison said:
“The prospect of such an extensive
revision of state practice would have caused major controversy
at the very least; quite probably it would have prevented ratification
of the Amendment. Under these circumstances, now to place the
proposed interpretation upon the Fourteenth Amendment would be
in the nature of a fraud upon the states which ratified it....”
[20]
“...to read the Bill of Rights into the Fourteenth Amendment
amounts simply to an effort to put into the Constitution what
the framers failed to put there. No matter how desirable the
results might be, it is of the essence of our system that the
judges must stay within the bounds of their constitutional power.
Nothing is more fundamental – even the Bill of Rights. To depart
from this fundamental is...’to frustrate the great design of a
written Constitution.’”
[21]
We must be careful not to take an “ends justifies the means”
approach to things lest we submit ourselves to a “rule of men”
rather than “the rule of law.” For example, most of us would
conclude that Louisiana’s granting of a butcher monopoly within
New Orleans was a bad idea. But the people of Louisiana should be left alone to eventually
figure that out for themselves – the U.S. Supreme Court shouldn’t
come in and impose its will concerning the matter. To its credit,
it didn’t in that case. But later on, a different set of judges
felt they had the power to do such things. The same could be
said about whether or not a state should be able to take private
property without having to pay just compensation. The people
of the states should decide this for themselves, not the Supreme
Court on its own volition lest the whole notion of federalism
be destroyed.
Judicial
Activism
All of a sudden, many decades after the adoption of the 14th
Amendment, we saw the U.S. Supreme Court start down a path to
inject itself into issues which, ever since our nation was founded,
had been left to the states to decide on their own within their
respective state boundaries.
Did this occur because the requisite super-majorities within
Congress and the states formally and explicitly amended the Constitution
to so provide? No! Rather, all of a sudden and out of the blue,
the14th Amendment started to take on a new and expansive
meaning beyond the wildest imaginations of the vast majority of
those who voted to adopt it.
In a string of separate cases spread out over several decades
after Gitlow, step by step the U.S. Supreme Court took
upon itself the power to second-guess the states on many different
things-- determining such issues as the separation of church and
state, limitations on states’ abilities to regulate pornography,
criminal rights, search and seizure, self incrimination, etc.
In the process, states’ rights were decimated, all because a majority
of nine unelected people on the U.S. Supreme Court wanted
it to be so. Of course it wasn’t the same nine people every time
since the make-up of the court was constantly changing over that
period of time. But each time a new inroad was made, it only
took somewhere between 5 and 9 votes to do it. And as the body
of case precedent grew with each new inroad, future ones became
easier and easier to accomplish.
Why No Public
Uproar?
Why didn’t America fly into an uproar over these changes?
At least two possible explanations come to mind. First, the changes
didn’t all happen at once. To illustrate, consider the difference
between a thief pulling off a big job all at once – the effects
of which will immediately be noticed – and the small but steady
series of peculations committed by an embezzler. The effects
of his embezzlements are not noticed immediately because each
is small individually, but their cumulative impact eventually
starts to be felt. And in the legal context, once a series of
changes has been allowed to develop over several decades, it is
very hard to reverse course. If all the changes had happened
at once, perhaps people would have been more concerned about them.
Second, several of the incremental changes happened during
the Great Depression when everyone was begging the federal government
to save them. At that time, people’s faith in the federal government
was growing very quickly, while they were losing faith in their
own state governments as the nation-wide economic crisis deepened.
Many more changes happened during WW II and the decades following
it. And of course, people’s faith in the federal government increased
even more as we returned victorious from WW II.
So it may be that their senses were dulled and distracted by
the back-to-back earth-shattering crises being played out on the
world stage before their eyes. After all, who would be inclined
to worry about a U.S. Supreme Court case here or there shifting
the interpretive power concerning a particular right over from
the states to the federal government, when the family bread winner
can’t find a job or a son is in mortal danger on the front line
somewhere over in Europe? And then after the war was over
and the federal government had gotten us through both the depression
and the war, who was going to worry if their economic and political
savior took on more power and authority?
This may all be a reflection of what Hamilton said in the first
paragraph of Federalist #27 where he set forth as a general rule
that people’s “confidence in and obedience to a government will
commonly be proportional to the goodness or badness of its administration.”
Anyway, this is a very interesting bit of Constitutional history
that has long since been forgotten, if ever even noticed at all,
by most people. But because this perverted form of federalism
has become so firmly entrenched since 1925, few people give it
much thought anymore. We simply have resigned ourselves to the
way things are. Since (1) our teachers have not taught us this
part of our constitutional history, and (2) most of the changes
occurred before we became adults, most of us are ignorant of the
fact that any fundamental changes have even been made by the U.
S. Supreme Court in this regard. We just assume that it is the
proper role of the U. S. Supreme Court to determine what our rights
are.
A Closer
Look At The Issue–What Is The Problem?
Let’s look a little more closely for a moment at the overall
issue of “selective incorporation.” By its piecemeal interpretation
of the 14th Amendment, the U.S. Supreme Court has effectively
ruled that all the fundamental individual rights found in the
Bill of Rights must also be observed by the states. At first,
one would have a hard time seeing any difficulty with that proposition
– after all, fundamental rights are fundamental rights, aren’t
they! So where is the problem?
Well, consider this: if the fundamentalness of rights dictate
that their determination, definition, and limitation should be
decided at the highest possible level, then perhaps it shouldn’t
happen at the federal level but be moved up even farther to the
world level – i.e. the United Nations. The same thing that causes
most of us to recoil in horror at that proposition (i.e. mismanagement,
the loss of sovereignty, etc.) is what people in the states feel
when the federal government says that only it is competent to
rule on these issues. One should not be so quick to assume that
unless rights are handled at the federal level they will not effectively
be handled at all.
The problem surrounds the issue of determining what those rights
really are, interpreting what they actually mean, and limiting
the extent of their application. After all, we don’t have any
sort of stone tablets etched by the finger of God succinctly,
carefully and definitively answering all those questions. So
who should have the authoritative interpretive power concerning
them? The Supreme Court, on its own volition, has effectively
said that it does.
Can’t Reasonable
Minds Differ?
Remember from Primer #1 how George Washington recognized the
need for trade-offs regarding liberties and other worthy societal
goals and objectives? Can’t reasonable minds differ on such things?
If not, then all Supreme Court decisions on such matters would
always be 9 to 0 decisions--but they hardly ever are. Why? Because
as discussed in Primer #2, reasonable people can disagree about
the appropriateness of making trade-offs between competing societal
goals; they have different value systems; they assess the relative
importance of things differently; they assess inter-connective
cause-and-effect relationships differently regarding things that
have happened in the past; they foresee the future consequences
of things differently; and they differ as to whether only direct
and immediate consequences should be considered in deciding what
the law should be versus indirect and delayed consequences, etc.
Implications
Regarding The Regulation Of Pornography and Other Things Traditionally
Thought to Be Within The States’ Police Powers
Because of the Supreme Court’s interpretation of the reach
of the 14th Amendment in Chicago,
Burlington
& Quincy
R.R.; Gitlow; and later cases stemming
from them, we have virtually lost our ability to regulate pornography.
The Court has likewise commandeered the sole ability to determine
the appropriate extent of the separation of church and state issues.
Hence, the ACLU happily prances around the country forcing local
communities to remove monuments to the ten commandments, religious
Christmas decorations, the singing of Christmas songs, prayers
from public meetings, etc., and the courts make the local communities
pay the ACLU attorneys fees in the process. It would be interesting
to see how much of the ACLU’s funding comes involuntarily from
taxpayers through this process as opposed to voluntary contributions
from donors who agree with its philosophy.
Conclusion
The Supreme Court’s interpretation of the due process clause
of the Fourteenth Amendment effectively stripped the states of
many of their traditional “police powers” – the power to regulate
the public “safety, health, morals, and general welfare.” [22] This was done in obvious contravention of both
(1) those legislators who adopted it at the federal and state
levels and (2) the Justices who were sitting on the Supreme Court
at the time of its adoption (and shortly thereafter) and who would
certainly have been very familiar with the intents and moods of
those legislators as to how far they intended the reach of the
Fourteenth Amendment to go.
But the Supreme Court’s interpretation of the Fourteenth Amendment
represents just one of the ways the federal government has gotten
so powerful and the states so weak. The next article will explore
other ways this has come about.
