The constant reiteration that the purpose of the Amendment was to constitutionalize the Civil Rights Act, the frequent tributes to State sovereignty, and recognition of powers reserved to the States by the Tenth Amendment, in which [Rep. John] Bingham [of Ohio, author of Section 1 of the 14th Amendment] joined, unite to repel an inference that the framers intended to interfere with State conduct in its own affairs otherwise than is described in the Act.
Moreover, Berger quotes Hugo Black himself, some years before his formulation of the Incorporation Doctrine in Adamson in 1947. Despite Black's efforts in Adamson to argue that the framers of the 14th Amendment intended to incorporate the Bill of Rights, his earlier statements contradicted that argument. "The states," Black wrote in a 1938 Supreme Court ruling, "did not adopt the [14th] Amendment with knowledge of its sweeping meaning under its present construction. No section of the Amendment gave notice to the people that, if adopted, it would subject every state law ... affecting [judicial processes] ... to censorship of the United States courts." In other words, the inventor of the Incorporation Doctrine himself acknowledged that the intent of the framers of the 14th Amendment did not include incorporation. Only by abandoning the concept of original intent could Justice Black expect to sustain his own case for Incorporation.
Nevertheless, despite the absence of any authority for accepting the Incorporation Doctrine, the court proceeded to apply it as it wished, and having gotten away with applying it in selected and limited cases early in the century, it soon began to rely on it for its revolutionary purposes. The list of judicial invasions described by Douglas Bradford suggests the scope of the power that the Doctrine provided to the court, and to this day the court continues to rely on this totally unfounded myth to justify its intrusions into state and local affairs.
Aside from the concentration of federal power and the centralization of judicial power that reliance on the Incorporation Doctrine has allowed, one result of the 70-year crusade to bring the states under the authority of the Bill of Rights has been the involvement of the federal courts, including the Supreme Court, in micromanaging the affairs of the states and localities and thereby the increasing decline of local self-government, local responsibility, and the consent of the governed to the arrangements that govern them. Professors Quirk and Bridwell, in their recent book Judicial Dictatorship, discuss how communities are being arbitrarily subjected to really dangerous decisions by the courts. As of 1993, they write, the courts controlled "80 percent of all state prison systems and about 33 percent of the five hundred largest jails" in the nation, and the Supreme Court "routinely overrules the actions of the local police, boards of education, and the state laws under which they act. The beneficiaries of the Court's protection are criminals, atheists, homosexuals, flag burners, Indians, illegal entrants, including terrorists, convicts, the mentally ill and pornographers."
Moreover, in determining how local jurisdictions shall be governed, the courts have long since abandoned the practice of referring to the actual constitutional text. Indeed, in the case Griswold v. Connecticut (1965), which discovered a hitherto unknown "right to privacy" in the Constitution that later blossomed into the "right to an abortion" in Roe v. Wade, Justice William O. Brennan actually invented what he called "penumbras" by which specific guarantees of the Bill of Rights imply other, unspecified rights that the courts may invoke to strike down state laws. In place of the constitutional text, justices have invented other tests by which to determine whether a community is abiding by the Constitution.
One such test is the so-called "Lemon Test," under which the Court decides whether certain state laws violate the "separation of church and state" (a phrase not found in the Constitution but which has been erected into a fundamental constitutional principle). The Lemon Test, deriving from a 1971 case of Lemon v. Kurzman, consists of three standards a given law must meet if it is to be permitted: a) the law must have a secular legislative purpose; b) its principal or primary effect must be neither to advance nor inhibit religion; and c) it must not foster an "excessive entanglement" with religion. None of these standards is to be found in the Constitution either, nor is one of the corollaries of the Lemon Test, the "Reindeer Rule." This rule regulates what kind of Christmas displays a local government may put up. The display must not have a religious purpose because the Constitution as re-invented by the justices does not permit government sponsoring of religion, and one means of determining whether a Christmas display is religious or not is whether it contains reindeer. Santa Claus, his reindeer, his elves, Frosty the Snowman, and similar secular images of Christmas are permitted by the U.S. Constitution. Madonna and Child, "Silent Night, Holy Night," and (perish the thought) actual prayer are verboten, unless surrounded by secular Christmas paraphernalia.
The Lemon Test, the Reindeer Rule, and similar devices invented by the court have no foundation whatsoever in the Constitution. Having abandoned the concept of original intent, imported their own opinions into interpreting the words and language of the Constitution, and fabricated the myth of the Incorporation Doctrine, the courts have essentially liberated themselves from the Constitution as written and arrogated virtually unlimited power to themselves. There is today literally no telling as to how the courts may rule on any given subject, certainly not by examining the text of the Constitution, the records of its drafting and ratification, or the rulings handed down by earlier generations of jurists. Indeed, so irrational and unpredictable have the courts become in their decisions that conservative journalist and constitutional expert M. Stanton Evans concluded in his 1994 book, The Theme Is Freedom, "To all intents and purposes ... this arrangement [the constitutional order established by the Framers] is now defunct. In reality, we no longer have a Constitution, or anything that can be accurately depicted as constitutional law."
Must we accept this autopsy report on the Constitution, or is it possible to restore the Constitution to its vital function in our national life? In fact, Americans have allowed the Constitution to die by their own inattention to judicial (as well as congressional and presidential) usurpation. We can restore the Constitution and the federalism and states' rights it protects by insisting that all branches of government abide by the real meaning of the Constitution and especially that the federal judges and Supreme Court justices appointed by the President and confirmed by the Congress be magistrates who understand and are committed to upholding its real meaning.
Yet, despite the Republican majority in both houses of Congress since 1994 and despite Republican control of the White House for 12 years under Ronald Reagan and George Bush, there has been little serious effort to restore the Constitution or bridle the outrageous usurpations of the judiciary. Today, all but two of the nine Supreme Court justices were appointed by Republican Presidents, but the court continues to hand down decisions that are just as alien to the Constitution as anything Earl Warren or William J. Brennan (both of them appointed by Republican President Dwight Eisenhower) ever attempted. Although Republican presidential nominee Robert Dole last year criticized President Clinton's judicial appointments, it turned out that Dole as Senate Majority Leader had himself voted for 185 of the 187 judicial nominees President Clinton had made in his first term. Neither Dole nor other leading Republicans raised much objection to either of Mr. Clinton's two liberal Supreme Court appointments, and some Republican senators actually endorsed the nominees before the Senate held confirmation hearings. By contrast, when the Democrats controlled Congress and Republicans nominated justices like Robert Bork and Clarence Thomas, the hearings and confirmation process were savage sessions of political opposition and character assassination. Certainly the Republicans should not engage in such tactics to stop liberal judicial appointments, but they could do far more than they have done to challenge the credentials and judicial philosophies of the judges and justices the Democrats have appointed.
Republicans and conservatives have generally been far too timid in criticizing liberal appointees, and they have often allowed liberal judicial philosophy to prevail simply because they either don't understand what is wrong with it or have come to believe that it is irreversible. Thus, even Judge Bork in his book The Tempting of America, written after his bitter confirmation battle in the Senate, concedes, "The controversy over the legitimacy of incorporation continues to this day, although as a matter of judicial practice the issue is settled." Of course it is "settled" as long as those who know the doctrine is a myth refuse to "unsettle" it. Only by challenging the Incorporation Doctrine and similar myths publicly and openly can conservatives hope to expose their fallacies and restore the real Constitution.
There is also a good deal of discussion about correcting the excesses of the courts through constitutional amendments like the school prayer amendment, the balanced budget amendment, term limits amendments, the human life amendment, and the flag amendment, which would reverse the Court's 1989 ruling striking down state laws against burning the American Flag. In some cases, amending the Constitution may be necessary, but in general it is not a good idea. It is impossible to amend the Constitution to correct every bad decision the Supreme Court hands down, and doing so would do nothing to strike at the real root of the problem, which lies in the courts and the judges. As Gary Benoit wrote last January in the pages of THE NEW AMERICAN, "Such 'solutions' are based on a premise that the U.S. Constitution is the problem when in fact the problem is a lack of adherence to the Constitution."
Even if we could amend the Constitution every time the courts make a bad decision, the text of the Constitution would become so cluttered that it would no longer be the simple and easily comprehensible document that has allowed it to endure as long as it has. It would soon come to resemble the long, complicated, and largely useless constitutions that many Latin American nations have and would be a document that only lawyers and experts could claim to comprehend. Indeed, the courts' twisted reading of the Constitution and their fabrication of false interpretations and standards have already moved us too far in that direction.
By far the single most effective remedy for judicial usurpation that the Congress could adopt would be to limit the appellate jurisdiction of the Supreme Court. Article II, section 2 of the Constitution states:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned [in the first part of the section], the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Under this provision, the Congress could simply enact a law or a series of laws that withdrew from Supreme Court jurisdiction any cases involving such issues as abortion, school prayer, law enforcement, pornography, subversion, civil rights, or any other area in which the Court has intruded. Conceivably, the Congress could also simply enact a law withdrawing from Supreme Court jurisdiction any case involving claims against the states based on the Bill of Rights, thereby abolishing the Incorporation Doctrine at a single stroke. The court itself has endorsed the legitimacy of limiting its appellate jurisdiction in the 1868 case Ex Parte McCardle.
Moreover, the Congress could also simply abolish (or, at the very least, limit the jurisdictions of) the lower federal courts, which the Congress, after all, created in the first place. Article III, section 1 of the Constitution states that "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish." By abolishing or limiting such courts Congress would remove the breeding grounds in which many false judicial doctrines are spawned, and even if Congress chose not to abolish them outright, it could still severely discipline them by curtailing the salaries of the judges, their clerical and office support, and other perquisites of office. Finally, the Congress could impeach judges and justices whose rulings showed that they have failed to understand the meaning of the Constitution or that they are really pushing their own political agendas despite the Constitution.
In short, the Congress, the Republican Party, and American citizens in general have not even begun to consider seriously the many ways in which they could halt the judicial revolution in its tracks and begin restoring the Constitution and its authentic federalism. If we are serious about the alarm we increasingly feel at the arrogance of judicial usurpations, the loss of liberties, and our commitment to constitutional government, it is time we started.
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© Copyright 2004 American Opinion Publishing Incorporated
