April 29, 2009

With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “€œincorporating”€ the Bill of Rights into the Fourteenth Amendment’s Due Process Clause. In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.

The Preamble to the Bill of Rights says, in part, “€œThe Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….”€  (Are you surprised that you have never read this before?  That it is not usually included in printed versions of the Constitution?  What accounts for that omission, do you think?)

Unsurprisingly, then, the First Amendment begins by saying, “€œCongress shall make no law.”€  Why?  Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers.  So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states.  This was the only significant constitutional decision in which Marshall ever ruled against federal authority.

James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states”€™ behavior in respect to certain rights.  His effort was unavailing.  Thus, when “€œoriginalist”€ Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “€œoriginalist”€ he really is.  When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.

And when notable gun-rights advocates such as Don Kates and Stephen P. Halbrook argued for the “€œincorporation”€ of the Second Amendment into the Due Process Clause “€” that is, for right-wing judicial legislation “€”they demonstrated that, as has been true for most of American history, the Constitution has come to be (in Jefferson’s words) “€œa thing of wax”€ waiting to be reshaped by today’s Judicial-Branch majority into the opposite of what it “€œmeant”€ yesterday.

As Raoul Berger showed years ago in his The Fourteenth Amendment and the Bill of Rights (for anyone who cared to know), the argument that the Due Process Clause was intended to work this thorough revolution in the American order is entirely bogus.  But judicial activists, nay, anti-constitutionalists on the right are no slower to deploy it than their mirror images on the Left to win through the federal judiciary what they desire:  victories for their policies that they have been unable to achieve at the ballot box.

Concurring in the judgement of his three-judge panel, Judge Ronald M. Gould wrote that of course the Second Amendment did not empower individuals to keep nuclear weapons in their homes.  The incorporated Second Amendment gun right, then, would be subject to “€œreasonable”€ regulation.

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “€œreason”€ for the (one infers) “€œunreasonable”€ regulations crafted by elected officials.  One does not have to be a gun banner to lament Nordyke v. King “€” and all its cousins.

The Incorporation Doctrine sounds benign enough.  Who could oppose having federal courts stand up for individuals”€™ rights, even if their doing so does violate the structure of the Constitution? Historically, however, it has not turned out so well.

It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether.

It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography.  The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “€œacceptable”€ punishments.

Whatever one thinks of these various policy departures (and many of them actually tickle my fancy), the bottom line is that every time a court invented one of them, or legions of other Incorporation Doctrine policies, it did so despite what the Constitution actually meant.  Which means that to the extent that we live under the Incorporation Doctrine, we live under a judicial dictatorship.


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