As appeared in the  M E R I D I A N M A G A Z I N E
Constitutional Primer #5 -  5/19/04

The 14th Amendment and "Selective Incorporation"

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 1^st Amendment and discuss the first U. S. Supreme Court case dealing with the Bill of Rights -- Barron v. Baltimore.^[1]  

The Original Intents Behind The 1^st Amendment

Consider the exact language of the 1^st 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 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 10^th 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 1^st 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 1^st 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 5^th 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 5^th Amendment.  The city defended by arguing that the 5^th 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 5^th 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 13^th 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th Amendment.  So how did the change finally come about? – by ratification of the 19^th 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 14^th 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 14^th 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 1^st Amendment rights as applied against the states under the 14^th 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 1^st 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 14^th Amendment Is Identical To That Of The 5^th Amendment?

The 5^th Amendment says in part:

“No person shall...be deprived of life, liberty, or property, without due process of law....”

The 14^th Amendment says in part:

“...nor shall any State deprive any person of life, liberty, or property, without due process of law....”

Since the 5^th 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 5^th Amendment effectively nullify the 1^st Amendment?  According to the 1^st 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 5^th 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 1^st 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 5^th 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 14^th 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 14^th Amendment intended to impose any limitations on the states’ former abilities under the 10^th 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 1^st 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 [14^th] 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 14^th 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, the14^th 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 14^th 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 14^th 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.