Lecture 6: The 14th Amendment and the “Substantive Due Process” and “Selective
Incorporation” Doctrines
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 intents behind the 1st Amendment and discuss the first U. S.
Supreme Court case dealing with the Bill of Rights, namely, Barron v. Baltimore.1
The Original Intents 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 80 years or
so. But could there be a different meaning intended by the explicit prohibitive nature of the
language?
As discussed in prior chapters, what was the principal 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 of 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
1
Barron v. Baltimore, 32 U.S. 243 (1833).
1
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. Article 1, Section
10 where they were specifically prohibited from coining money, impairing contracts, issuing
bills of attainder, passing ex post facto laws, 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, even after that impassioned speech by Madison, 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.
2
Reproduced in A History of the American Constitution, Daniel A. Farber & Suzanna Sherry, West Publishing,
p.228.
3
Reproduced in A History of the American Constitution, Daniel A. Farber & Suzanna Sherry, West Publishing,
p.230.
2
Barron v. Baltimore: The Bill Of Rights Only Served As Handcuffs Against Federal
Government Action
Now let us consider the case of Barron v. Baltimore4. 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....”5
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 second4
Barron v. Baltimore, 32 U.S. 243 (1833).
Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? – The Judicial Interpretation,
Stanford Law Review, Vol. 2, 1949-50, pp. 140-173, at 141.
5
3
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,6 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.”
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 more than a halfcentury later 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.
Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? – The Original Understanding,
Stanford Law Review (Vol. 2, 1949-50), pp.5-139.
6
4
Jefferson’s Warning, Prediction And Rule Of Interpretation
In order to tie in the rest of this discussion with the prior chapters, 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.”7
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 lecture.
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."8
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.]”9
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.
7
Letter from Thomas Jefferson to Charles Hammond, August 18, 1821, Works 7:216; reproduced at
“www.constitution.org/tj/jeff15/txt”, pp.331-32.
8
Thomas Jefferson, to Justice William Johnson, 1823, ME 15:449; Reproduced at:
http://etext.virginia.edu/etcbin/ot2www-jeffquot?specfile=/web/data/jefferson/quotations/www/jeffquot.o2w
9
Joseph Story, Commentaries on the Constitution, Carolina Academic Press, Republished 1987, Sec. 181, p.135.
5
Procedural Due Process of Law
The Due Process clause appears in both the 5th Amendment (applying to the federal government)
and in the 14th Amendment (applying to the state governments.)
The key word in the term is “process.” What tends to come to mind in considering that word?
Wouldn’t it be things like the right to a pre-established and fair judicial process to resolve legal
disputes—things like a fair trial with an impartial judge and jury, the right to call your own
witnesses and cross examine opposing witnesses, etc.?
In law school, I was taught this was called “procedural due process.”
When, Where, and How Did The Due Process Clause Start Getting Stretched into a More
Expansive Meaning Than Originally Intended? -- The “Substantive” Due Process Doctrine.
With all of that review and background, finally we are to the point where we can discuss how
things went wrong with constitutional interpretation. Somewhere along the way the federal
courts expanded the meaning of “due process” beyond its procedural meaning to what has come
to be known as “substantive due process.”
In an excellent companion law review article to Professor Fairman’s, Professor Stanley Morrison
said the following about the 1897 case of Chicago, Burlington & 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.]”10 (emphasis
added)
This may be a good example of what we were taught in law school that often times “good cases
make bad law.” My first impression of that case holding was positive because it tended to
protect property rights which I think are critical for the prospects of promoting robust economic
expansion and which benefits everybody in the process. Initially I was inclined to take a
favorable utilitarian “ends justifies the means” approach to the case. But later I could see that
that precedent opened up the door for the Supreme Court to legislate from the bench in many
other areas that I think were bad for the country—hence, “good cases make bad law.” In
particular, it started the Court down the path of thinking that the states were too stupid to make
their own political decisions on many fronts and needed to be controlled more and more by the
Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? – The Judicial Interpretation,
Stanford Law Review, Vol. 2, 1949-50, pp. 140-173, at 152.
10
6
federal government legislatively and judicially. In effect, it set the stage for the destruction of
federalism and the centralization of power nationally.
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 generally overturn the principle
enunciated in Barron v. Baltimore, effectively through Chicago Burlington, and subsequent
cases, the Supreme Court did so through judicial activism.
Perhaps at this point I should make an observation. When it comes to the due process clause,
two different and new judicial doctrines will eventually come into play in expanding its original
meaning, namely, the substantive due process doctrine and the selective incorporation doctrine.
As we saw above, the new substantive due process notion allowed the court to become a public
policy maker. Through that notion, the Court could effectively invalidate any state action it
deemed to be unfair, unjust, etc. and/or contrary to some right newly applied against the states as
the Court saw fit. Apparently this doctrine was at work in both the Chicago Burlignton case
above and in the Gitlow case discussed below.
In Gitlow v. New York,11 a communist party official was convicted by a New York court of
violating the state’s criminal anarchy statute. 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 radical 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, limited and/or expanded.
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, a new precedent was set and the camel put its proverbial nose
further under the sides of the tent. And as the saying goes, it won’t take long for the judicial
camel to muscle his way all the way into the tent once his nose is inside.
Not only would the Court use the substantive due process notion to interpret the due process
clause of the 14th Amendment to control state action as we saw in the last two cases, but the
Court would also superimpose that “substantive” notion over the due process clause of the 5th
Amendment which applies to the federal government.12
11
Gitlow v. New York, 268 U.S. 652 (1925).
12
Bolling v. Sharp, 347 U.S. 497 (1954); Craig R. Ducat & Harold W. Chase, Constitutional Interpretation, 4th Ed.,
7
Besides the substantive due process notion, the court later comes up with another closely related
expansionary doctrine which becomes generally known as the selective incorporation doctrine.
Under this judicial doctrine, the Court one by one applies the various rights found in the federal
Bill of Rights against the states through the due process clause of the 14th Amendment.
Of the two judicial doctrines, the substantive due process doctrine seems to be the most openended since it is not necessarily limited to the various federal rights already specifically included
in the federal Bill of Rights. For example, the recent judicial creation of some sort of gay rights
in Lawrence v. Texas13 couldn’t have come through the selective incorporation doctrine since
they did not first appear anywhere in the Bill of Rights. They came out of the thin air of
substantive due process.
Before discussing the selective incorporation doctrine further, let’s first consider a matter of
logic concerning the meaning of the due process clauses of the 5th and 14th Amendments.
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
West Publishing Company (1988), p.624.
13
Lawrence v. Texas, 123 S.Ct. 2472, (2003).
8
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, I think 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 SlaughterHouse 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.”14
14
Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? – The Judicial Interpretation,
9
(emphasis added)
Here is where the selective incorporation doctrine comes into play.
The Selective Incorporation Doctrine
Concerning the case of Spies v. Illinois15 (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....”16
The argument made in Spies was ultimately rejected in Kemmler17 (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....”
Effectively they were taking a “big-picture” approach and following Jefferson’s earlier
quoted counsel where he said:
"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."18
Concerning a dissenting opinion in the1892 case of O’Neil v. Vermont19 two years later,
Morrison observed:
“Here then, in 1892, we get the first intimation from any Justice of the Supreme Court
Stanford Law Review, Vol. 2, 1949-50, pp. 140-173, at pp.143-45.
15
Spies v. Illinois, 123 U.S. 131 (1887).
Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? – The Judicial Interpretation,
Stanford Law Review, Vol. 2, 1949-50, pp. 140-173, at pp.147-48.
16
17
In re Kemmler, 136 U.S. 436, 448 (1890).
18
Thomas Jefferson, to Justice William Johnson, 1823, ME 15:449; Reproduced at:
http://etext.virginia.edu/etcbin/ot2www-jeffquot?specfile=/web/data/jefferson/quotations/www/jeffquot.o2w
19
O’Neil v. Vermont, 144 U.S. 323 (1892).
10
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.”20
Morrison continued:
“...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.”21
“...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 judges22 of the Court favored the [total
incorporation] 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 [and apply them against
the states], this was not generally known to its contemporaries.”23
“...the [incorporation] theory can be regarded as nothing more than a bald attempt to
amend the Constitution by judicial fiat.”24 So too would the substantive due process
doctrine discussed earlier.
In commenting on how many changes would have to have been made to state constitutions and
Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? – The Judicial Interpretation,
Stanford Law Review, Vol. 2, 1949-50, pp. 140-173, at p. 151.
20
21
Id. p.159.
22
Apparently Professor Morrison is narrowly focusing only on the selective incorporation doctrine in his count. For
if we considered both the selective incorporation doctrine and the substantive due process doctrine, the number of
judges favoring one or the other would have to exceed three judges since both Chicago Burlington and Gitlow were
majority opinions long before 1947.
23
Id. pp.159-60.
24
Id. p.161.
11
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....”25
Morrison continued:
“...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.’”26 (emphasis added)
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.
Nevertheless, on a case-by-case basis, through the selective incorporation doctrine, the U.S.
Supreme Court started judging how fundamental a particular pre-existing federal right was, and
started taking control over those it felt to be most fundamental and important, leaving to the
states the relatively inferior ones. Additionally, through the substantive due process doctrine the
Court started imposing against the states, totally new rights created out of thin air.
Judicial Activism
All of a sudden, several 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
25
Id. p.161-62.
26
Id. p.173.
12
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,
and as Jefferson predicted, 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.
How Did this New Substantive Due Process Notion Affect Property Rights?
In the last lecture, I talked about the sociological school of jurisprudence which is built upon
Hegel’s re-definition of the word freedom. He said freedom “is achieved only as the partial and
incomplete desires of the individual are overcome and integrated into the unified system of the
state in which the will of one is replaced by the will of all.”27 Based upon this idea, Roscoe
Pound, a sociologist who was the former dean of the Harvard Law, saw the appropriate legal
goal as “transferring (law) from individual interests to social interests. Satisfaction of human
wants has been the watchword rather than general security.”28
Pound continued: “Men are saying that material welfare is the great end to which all institutions
must be directed and by which they must be measured. Men are not asking merely to be allowed
to achieve welfare [through the idea of freedom as it was originally understood], they are asking
to have welfare achieved for them through organized society.”29
In other words, they want economic security to become some sort of human right that belongs to
all regardless of whatever poor choices they tend to make.
Well, how could this be done if property rights were considered to be fundamental in nature and
protected from plunder committed by individuals or by society as a whole? Consider what John
Adams said about the importance of property rights:
“The moment the idea is admitted into society, that property is not as sacred as the laws
of God, and that there is not a force of law and public justice to protect it, anarchy and
tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not
commandments from Heaven, they must be made inviolable precepts in every society,
before it can be civilized or made free.”30
Grolier Encyclopedia, quoted by John A. Stormer, “Betrayed by the Bench,” p.63.
Roscoe Pound, “Law and Morals,” p.109.
29
Ibid.
30
John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, editor
(Boston: Charles C. Little and James Brown, 1851), Vol. VI, p. 9.)
27
28
13
Remember how Pound proposed to gradually make the fundamental change away from the longestablished common law protection of private property and towards a welfare state where the
government regularly robs Peter to pay Paul for the sake of guarantying Paul’s “material
welfare” as a matter of “social justice?” In Pound’s own words, it would be through the “guise of
interpretation.”
Well, let’s see how this played out under the notion of “substantive due process” that we are
discussing in this lecture.
When Congress legislates, it often impacts individual rights. Over the years, as the federal courts
have tried to enunciate a rule to analyze whether or not such legislation meets the “substantive
due process” requirements they read into both the 5th Amendment (applying to the federal
government) and the 14th Amendment (applying to the state governments), they have categorized
some rights as being “fundamental” and others as effectively being second class in nature.
Regarding governmental impedance of “fundamental” rights, the courts have said that such
legislation will satisfy the “substantive due process” requirements and be constitutionally
enforceable, if the government can convince the federal courts that its legislation promoted a
“compelling government interest.” That is a pretty high constitutional hurdle for the government
to successfully jump.
On the other hand, regarding governmental impedance of “non-fundamental” or only second
class rights, all the government has to show to meet the requirements of “substantive due
process” and be constitutionally enforceable, is that the legislation is “rationally connected to a
permissible government interest.” That is a relatively low and easy constitutional hurdle for the
government to successfully jump.
So what are “fundamental” rights? It is hard to tell since they are constantly evolving under the
sociological school of jurisprudence. But so far such things as the right to interstate travel,
privacy, voting, and all 1st Amendment rights have been deemed fundamental. Although the
U.S. Supreme Court has not specifically said so yet, through judicial activism I suspect it will
eventually add sexual orientation to this list.
But noticeably absent from this list are property rights. That means that when Congress passes
laws that diminish property rights to satisfy some social goal or notion of the “general will”
(Hegel), it will not be stopped by our federal courts under substantive due process analysis since
the government can almost always convince the courts that there is some sort of rational
connection to promoting a permissible government interest—it doesn’t have to be some sort of
“compelling” government interest, just a “permissible” one. And again, in the thinking of the
sociological school, for the sake of guarantying material welfare to all, it has become permissible
to forcefully rob Peter (the rich) to pay Paul (the poor.)
How does the “equal protection clause” fit into all of this?
How does the “equal protection clause” fit into all of this? As you will recall from my earlier
14
discussion, as enunciated in the case of Barron v. Baltimore, the Bill of Rights (i.e. the first 10
Amendments to the Constitution) only applied as handcuffs to federal government action and not
to state government action. After the north won the Civil War, it forced the south to adopt the
13th, 14th, and 15th Amendments as preconditions to reconstruction after the war and to regain
their former rights to representation in the federal Congress.
The 14th Amendment only applied as handcuffs to state government action. The prime clauses
contained in the 14th Amendment are the “due process,” “privileges and immunities,” and “equal
protection” clauses. While the “privileges and immunities” clause appears in Article IV, Section
2 of the original Constitution, and the “due process” clause appears in the 5th Amendment, the
“equal protection” clause first formally appears in the Constitution as part of the 14th
Amendment.
The basic idea behind the “equal protection clause” was that the laws should be applied in the
same manner to all people without any distinctions made based upon race.31 After the 13th
Amendment was passed which formally destroyed the institution of slavery throughout the
United States, the southern states did not treat the newly-freed slaves as having all the rights
enjoyed by the white people in those states—they didn’t really have the equal protection and
enjoyment of the law but were treated as second class citizens. The “equal protection” clause
was designed to stop this injustice at the state level.
31
Shortly after the passage of the Civil War Amendments, in The Slaughterhouse Cases, 83 U.S. 36 (1873),
the U.S. Supreme Court said: “We repeat, then, in the light of this recapitulation of events, almost too recent to
be called history, but which are familiar to us all; and on the most casual examination of the language of these
amendments [the 13th, 14th, and 15th], no one can fail to be impressed with the one pervading purpose found in
them all, lying at the foundation of each, and without which none of them would have been even suggested; we
mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of
the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited
dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of
his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of
that race, and designed to remedy them as the fifteenth.
“…in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the
purpose which we have said was the pervading spirit of them all, the evil which they were designed to
remedy….”
***
[Regarding the equal protection clause, the court said:] “In the light of the history of these amendments, and
the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this
clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated
with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it
such laws are forbidden.
“If, however, the States did not conform their laws to its requirements, then by the fifth section of the … [14th]
amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any
action of a State not directed by way of discrimination against the negroes as a class, or on account of their race,
will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that
emergency, that a strong case would be necessary for its application to any other.” (emphasis added)
15
If the “equal protection” clause only appears in the 14th Amendment, and the 14th Amendment
only applies to state government action, why does it now also apply to federal government
action? The answer is, the U.S. Supreme Court read the “equal protection” clause of the 14th
Amendment into the “due process” clause of the 5th Amendment which applies to federal
government action. In other words, “substantive due process” was the vehicle of importation
into the 5th Amendment.
If a law affects everyone the same way with no distinction made between one group of people
and another, then the federal courts will usually use “substantive due process” analysis to
determine whether or not the federal or state government action was constitutionally justified.
However, when the law applies to one group of people one way and a different way to another
group of people, that is looked at as being discriminatory and unequal in nature. The federal
courts will usually use “equal protection” analysis to determine whether or not such
discriminatory federal or state government action is constitutionally justified.
You should note these Constitutional clauses only apply to government actions as opposed to
private actions by individuals or companies. To see what limitations or mandates apply to them,
we look to the various government laws passed pursuant to the delegated powers given to those
governments to regulate private human conduct.
Similar to its “substantive due process” analysis concerning governmental impairments of rights
where not all rights are considered to be fundamental in nature and worthy of judicial protection,
under the U.S. Supreme Court’s application of “equal protection” analysis, some discriminations
made by the various governments are deemed to be more abhorrent than others and worthy of
more judicial correction than others. Hence, it will apply differing levels of scrutiny depending
upon the basis of the discrimination. As I discuss the various tests, notice the different modifiers
used at each level. Each level of test becomes easier for the government to meet than the higher
level of test that precedes it.
The highest level of judicial scrutiny under “equal protection” analysis is called the “strict
scrutiny” test. If the basis of government discrimination is race, national origin, or alien
status, then a discriminatory law will violate the “equal protection” clause unless the
government can convince the federal courts that what they did was necessary to promote a
compelling government interest. This is a very high and difficult hurdle for the government to
successfully jump. Based upon the direction I perceive it is heading, I suspect that over time the
U.S. Supreme Court will eventually say that sexual orientation also fits within this level of
analysis.
The next highest level of judicial scrutiny is the “intermediate scrutiny” test which applies if the
basis of government-sponsored discrimination is sex or legitimacy of birth. Here, the
government’s purposeful discrimination will be allowed under “equal protection” analysis if it
can convince the federal courts that its discriminatory laws were substantially related to
promoting an important government interest.
If the basis of government-sponsored discrimination does not fall within the foregoing
categories, then by default, it falls within the lowest level of judicial scrutiny under “equal
16
protection” analysis. Here, the government’s purposeful discrimination will be allowed under
“equal protection” analysis if it can convince the federal courts that its discriminatory laws were
rationally connected to promoting a permissible government interest. Like the hurdle the
Court set for “substantive due process” analysis when non-fundamental human rights are
somehow impacted by federal and/or state laws, this is the same, and very easy, hurdle for the
government to jump and is almost never overturned as having violated the “equal protection”
clause of the U.S. Constitution.
To illustrate how these three sets of hurdles apply, consider the Adarand case. To help
minorities progress economically, the federal government passed a law whereby it had to award
at least 10% of all federal contracts to minority-owned businesses. On a particular federal
highway construction project, the government decided to award the contract to a minority-owned
business instead of Adarand which was the low bidder, but was a white-owned company.
Adarand brought a law suit in federal court saying that federal affirmative action policy based
upon race violated his rights under the “equal protection” clause. Since race was the basis for the
discrimination required by the law, the strict scrutiny test was applied whereby the government
had to convince the U.S. Supreme Court that its discriminatory policy was necessary to promote
a compelling government interest. Since it was not able to do that, the Court struck down the
federal law as being an unconstitutional violation of the “equal protection” clause.
But when some high-income taxpayers claimed that our graduated income tax system was an
unconstitutional violation of the “equal protection” clause, since race, national origin, or alien
status were not the bases of discrimination, the strict scrutiny test was not applied. And since
sex, or legitimacy of birth were not the bases for the government’s discrimination, the
intermediate level of scrutiny was not applied. Therefore the lowest level of scrutiny (or the
default rule) applied so the government only had to convince the court that the discriminatory tax
code was rationally connected to promoting a permissible government interest. This was pretty
easy to do since the courts found the permissible government interest was raising the taxes
necessary to fund the actions of the federal government, and the rational connection requirement
was met when the courts said that rich people can afford to pay more taxes than poor people.
If property rights were still considered to be fundamental rights like they used to be, then the
federal courts would probably have applied a much higher and more difficult hurdle for the
government to jump in constitutionally justifying what they did under equal protection analysis.
So even though much of the Constitution was designed to protect property rights (which will be
discussed more fully in a future lecture), once the sociological school of jurisprudence rose in
ascendancy from the end of the 1920’s onward, private property became the easy prey of
government in creating our current welfare state.
What is very ironic here regarding the judicial creation of the notion of “substantive due
process,” is that whichever case actually invented the notion,32 it was originally created to protect
32
Some say it was the 1897 Chicago, Burlington & Quincy R.R. case discussed above which, under the due
process clause of the 14th Amendment, forced a state to pay compensation for its taking of private property.
Or maybe it was the 1884 case of Hurtado v. California (110 U.S. 516) which said: “But it is not to be supposed
17
private property rights, but now, under the sociological school, it has been twisted to allow the
easy plundering of private property to erect our current welfare state. In a footnote in the written
version of this lecture, I consider some cases that could serve as the genesis of the propertythat these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is
too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law
is something more than mere will exerted as an act of power. It must be not a special rule for a particular person
or a particular case, but, in the language of Mr. Webster, in his familiar definition, "the general law, a law which
hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial," so "that every
citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern
society," and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative
judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of
legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not
law, whether manifested as the decree of personal monarch or of an impersonal multitude. And the limitations
imposed by our constitutional law upon the action of the governments, both State and national, are essential to the
preservation of public and private rights, notwithstanding the representative character of our political institutions.
The enforcement of these limitations by judicial process is the device of self-governing communities to protect
the rights of individuals and minorities, as well against the power of numbers, as against the violence of public
agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the
government.”
Or maybe it was the 1874 case of Loan Association v. Topeka (87 U.S 655) which said: "It must be conceded that
there are such rights in every free government beyond the control of the State. A government which recognized
no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute
disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It
is true it is a despotism of the many, of the majority, if you choose to call it so, but it is nevertheless a despotism.
It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his
happiness and the security of which is essential to that happiness, under the unlimited dominion of others,
whether it is not wiser that this power should be exercised by one man than by many."
Justice Scalia, however, thinks it was the 1857 Dred Scott case (60 U.S. 393) which said that African
Americans could not be citizens of the United States and that Congress could not prohibit slavery in the U.S.
Territories like it tried to do. Effectively, the Court viewed slaves as the private property of the slave holder
and sought to protect that property right.
However, the earlier 1829 Wilkinson v. Leland case (27 U.S. 627) might also be cited as the case effectively
creating the notion of “substantive due process” even though that term was not used. There the U.S. Supreme
Court said: “That government can scarcely be deemed to be free, where the rights of property are left solely
dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free
government seem to require, that the rights of personal liberty and private property should be held sacred. At
least no court of justice in this country would be justified in assuming that the power to violate and disregard
them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general
grant of legislative authority, or ought to be implied from any general expressions of the will of the people.
The people ought not to be presumed to part with rights so vital to their security and well being, without very
strong and direct expressions of such an intention…. a different doctrine is utterly inconsistent with the great
and fundamental principle of a republican government, and with the right of the citizens to the free enjoyment
of their property lawfully acquired. We know of no case, in which a legislative act to transfer the property of
A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the
union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial
tribunal in which it has been attempted to be enforced.”
Who knows, perhaps some other earlier case might also be cited as the genesis of the “substantive due
process” notion. But at least regarding the foregoing cases, all of them held that Congress did not have the
unlimited power to plunder private property to pursue what we would call “social justice” today and that the
federal courts had the power to declare such attempts to be unconstitutional.
18
protecting “substantive due process” idea.
Why No Public Uproar?
So why didn’t America fly into an uproar over these very significant changes to our
Constitutional form of government? At least two possible explanations come to mind. First, like
Jefferson predicted, 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 before their eyes on the world stage. 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 it was generally perceived that 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 long before most of us were born, 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.
19
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, the plundering or our national wealth, 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 an earlier lecture 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 an earlier lecture, 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
20
the process. It would be interesting to see how much of the ACLU’s funding comes from
taxpayers involuntarily 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.”33 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. Moreover,
this also contravenes the reservations of authority to the states under the 10th Amendment.
So what is the big deal about destroying states’ rights and making the federal government so
powerful?
If we could be sure it would promote a truly benevolent despotism doing what was really right
and best for the people, then it might be acceptable. But history gives us little grounds for
confidence in that expectation. If our federal government uses that centralized power to take us
the wrong way, it has the power to take us down that road much more quickly than would be
possible under our original constitutional framework of federalism.
If we again recognized robust state sovereignty, we could have many different experiments and
therefore, both islands of safety and repose and islands of dysfunction and chaos which people
could readily see and compare and then vote with their feet to move away from the dysfunctional
state societies to their preferred locations without having to give up their American citizenship.
What are the two great general philosophic divides I see comparing our historical experience
with our modern experience?
Originally, states controlled their moral environments and decided how much separation there
should be between church and state. Most of us believed in freedom moderated by a Godcentered sense of moral responsibility and obligation to work hard in a free market so as to take
care of our own needs and also be able to generate a surplus through which we could voluntarily
and charitably help our fellow man in times of need. We demanded the protection of our basic
and fundamental God-given rights—including property rights—and didn’t insist upon expanding
the notion of rights to include every selfish material and irresponsible desire. We largely
believed that God holds the destiny of nations in His hands and will only bless a people with
safety and prosperity if they obey his laws. In God, we truly did trust and things worked out
pretty well for us under those philosophies.
But today, as our ever-expanding centralized power has constantly moved us towards
33
Lochner v. New York, 198 U.S. 45 (1905).
21
socialism/fascism, we have largely lost our deep faith in God and effectively replaced Him with
what we expect to be an all-providing government to satisfy our every material whim. Day by
day it is turning us more and more into a Godless, selfish, whiny, demanding, materialistic,
nihilistic and indignant populace who have expanded the notion of rights to include a wide array
of irresponsible and self-destructive demands.
We have socialized what used to be individual moral obligations. We have come to demand
material welfare forcefully provided at the expense of others against their wills. Under this
regime both the givers and the takers are upset and diminished since the givers resent the force
that was used to make them give and the takers are incensed since they think they should get
even more through this process than they currently are.
Our general trend is towards an “eat, drink and be merry for tomorrow we die” attitude devoid of
any spiritual depth or commitment. And courts have basically said that this is the way it must be
for the whole country with the states no longer able to hedge their bets and exercise their police
powers to encourage a different outlook.
In fact, under 14th Amendment “substantive due process” and “equal protection” analyses, when
the federal courts threw out the provision in California’s constitution which defined marriage as
being between one man and one woman, they said that such religiously oriented restraints were
irrational and could not even meet the very low rational basis test under both of those 14th
Amendment clauses.
But the Supreme Court’s misinterpretation of the Fourteenth Amendment represents just one of
the ways the federal government has gotten so powerful and the states so weak. The next lecture
will explore other ways this has come about.
22