How to save the Constitution
(Note: The “due process” argument in the Hazleton decision does not seem to be “substantive,” as I understood from initial news reports, but “procedural,” namely that under the Hazleton ordinance the illegal aliens are not given sufficient notice that their employer or landlord has been required either to provide proof of their legal status or to fire or evict them. At the same time, it seems to me that excessively intrusive requirements concerning procedure, such as the exact type of notice that must be given, amount to a substantive requirement. In any case, whether or not substantive due process was used in the Hazleton case, the subject of this entry is not Hazleton but the illegitimate expansion of the 14th Amendment by substantive due process and the Incorporation Doctrine, giving federal courts essentially unlimited power to override laws duly passed by state and local governments. As Oliver Wendell Holmes said in Baldwin v. Missouri (1930): “I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.” ) A federal district judge has found that Hazleton, Pennsylvania’s anti-illegal alien ordinance violates the Constitution. What this really means is that the ordinance violates the monstrously hypertrophied interpretation of the Fourteenth Amendment that has been spawned, as in the laboratory of a constitutional Dr. Frankenstein, by revolutionary federal judges over the last 70 years, usurping the normal power of states and municipalities to govern their own affairs.
In the present case, the judge found that the ordinance, by punishing businesses that hire or rent to illegal aliens, was violating the clause in the Fourteenth Amendment which says that no state “shall … deprive any person of life, liberty, or property, without due process of law.” The “due process of law” that is supposedly lacking in Hazleton’s ordinance is not the ordinary, lawful, and proper operation of the Hazleton City Council in passing the ordinance; rather, it is a particular substantive result that the judge in his supra constitutional wisdom deems necessary. Thus if a locality passes a law that limits some individual liberty that a federal judge believes should never be limited under any circumstances, the judge says that the locality has acted without “due process of law” and the ordinance is declared unconstitutional. Under interpretations of the Constitution going back at least 70 years, “lack of due process” has become an all-purpose weapon by which federal judges can declare unconstitutional almost any state or local law they don’t like.
Another device by which the reach of the Fourteenth Amendment over the states has been radically and illegitimately expanded is the Incorporation Doctrine. Developed in a series of Supreme Court decisions in the early through the mid 20th century, the Incorporation Doctrine “incorporates” the Bill of Rights, the first ten amendments to the Constitution, within the Fourteenth Amendment, by saying that the “privileges and immunities” protected under the Fourteenth Amendment include all the rights protected in the original Bill of Rights. The Incorporation Doctrine has had its widest effect and can be best understood in its relation to the First Amendment. The Incorporation Doctrine incorporates the First Amendment—which prohibits Congress from restricting the expressive freedoms of speech and of religion and of the press—within the Fourteenth Amendment—which prohibits the states from violating the most fundamental human rights. As a result, individuals’ expressive rights are now treated as among the fundamental human rights that are protected by the Fourteenth Amendment and that are enforced against local and state government.
The Incorporation Doctrine thus represents a total reversal of the original structure and purpose of the First Amendment and of the Bill of Rights as a whole. The original purpose of the First Amendment was to set strict limits to the reach of federal power over the states and the people; it said that “Congress shall make no law” establishing a religion or limiting the exercise of free speech; it left the states entirely free to establish a religion or limit the exercise of free speech. But under the Incorporation Doctrine the First Amendment gives federal courts almost unlimited power over the states—for example, forbidding states and localities from having their own customary laws, public religious practices, and enforceable standards of public behavior. The Supreme Court decisions of the 1960s and 1970s that outlawed school prayer, that overturned anti-loitering laws, and that curtailed local governments’ power to outlaw vice, were all made under, and would have been impossible without, the incorporation of the First Amendment into the Fourteenth Amendment.
It strikes me that there is only one way to get rid of the Incorporation Doctrine, the Substantive Due Process Doctrine, and other conceptual atrocities such as the expanded Commerce Clause, that have turned the Constitution on its head and destroyed state and local government in this country: passage of a Constitutional amendment that would formally invalidate these doctrines and misinterpretations. The amendment would say in part:
Section 1. The First Amendment to this Constitution is not incorporated in the Fourteenth Amendment and therefore does not apply to the several states or to any individual state. The First Amendment, as per its plain language, prohibits only the Congress, not the states, from making laws respecting an establishment of religion or prohibiting the free exercise thereof. The First Amendment, as per its plain language, prohibits only the Congress, not the states, from abridging the freedom of speech and the right of the people lawfully to assemble and to petition the government for redress of grievances. Any judicial interpretation of this Constitution that says otherwise, and any legislation or regulation enacted pursuant to such interpretation, is null and void.With this amendment, which would need further sections eliminating incorporation of the rest of the Bill of Rights and a section limiting the reach of the Commerce Clause, most of the illegitimate destruction of state and local governmental power by the federal courts would be ended in a single blow. In conformity with their respective state constitutions and state laws, school districts could once again have school prayer. A town, if it wanted to, could erect giant stone tablets with the Ten Commandments in front of its court house. Indeed, in conformity with its constitution, a state could have an established religion (though, in fact, all the state religious establishments were voluntarily abandoned by the mid 19th century). Schools could once again have dress codes and speech codes. Municipalities could once again outlaw the sale of pornography or the public display of pornography. Municipalities could once again outlaw loitering and vagrancy. A city such as Hazelton could have an ordinance that fines businesses for hiring or renting apartments to illegal aliens. States could bring back anti-sodomy laws and anti-miscegenation laws. They could outlaw abortion.
If the people of a state did not want municipalities to have the power to outlaw vagrancy or loitering, or if they did not want there to be school prayer or anti-sodomy laws or a ban on interracial marriage, they could in pursuance of their character and their right as a self-governing community change their state laws or amend their state constitution accordingly. If such efforts failed, and if individuals did not like living in a town that banned the public display of pornographic magazines, they could move to another town. If they did not like living in a state that outlawed abortion or had an anti-sodomy statute, they could move to another state.
This is the way the American system was meant to operate; it’s called self-government. It is the blatantly unconstitutional and grossly anti-logical misinterpretations of the Fourteenth Amendment and of other parts of the Constitution that has allowed these ordinary yet sacred American liberties to be usurped and destroyed.
Since the existing network of judicial precedent, legislation, and regulations based on the illegitimate expansion of the Fourteenth Amendment is so basic to the functioning of modern liberal America, and since federal judges in the interests of stability honor long-existing precedent, even if the precedent, such as Roe v. Wade, is utterly and totally without basis, true reform of this monstrous system can never come from the courts. The only way to restore constitutional government in this country is through a revolutionary—or rather counterrevolutionary—constitutional amendment that essentially throws out the judicial usurpations of the last 70 years. If there is still an American people that cares about constitutional government in general and about the right of communities to govern themselves in particular, the attempt to pass such an amendment could become their focus and their rallying cry. Instead of forever agonizing impotently about liberal judges, the American people could take the initiative in the matter and seek to put the power back in their own hands. I’m not saying that such an amendment would have a realistic chance of passage in the short or medium run. But proposing and arguing for it would bring the real issues front and center and show the American people that our government, and our fate, are in our hands.
Great writing!LA replies:
No—we don’t want judges rewriting the Constitution!Paul Cella writes:
I’m all for your amendment.Mark Jaws writes:
Brilliant, but impractical. It will never pass. In fact, given the divided nature of the country today, no controversial, rock-the-boat. disrupt-the-judicial-oligarchy amendment is ever going to pass. Even if your amendment somehow garnered the 2/3 vote necessary in the Congress, do you think there are 38 states which would ratify the Auster Amendment? No way. Sorry, Mr. Auster.LA replies:
Maybe I’m impractical, but if the choice is between seceding from America, and trying to win back America, then I still agree with Samual Francis’s argument that the correct aim for traditionalists is to win back America.RWM writes:
This piece brought into focus something I have experienced, but not noticed before. The concept of “self-government” to me is insipid and lifeless. Every time I hear the term used and hallowed (in an ostensibly lofty context) it has virtually no effect on me. But the way you describe it shows that we have no self-government at all. There is no incentive for me to get involved in the governmental affairs of a community, since the parameters of such action—and even the beliefs behind it—are really set by the members of the federal government. Participation is limited to voting for a limited few federal politicians. The action of the state and local actors is governed from on high. I’ve been disenfranchised!LA replies:
Exactly. “Democracy” has been redefined as unlimited individual rights, enforced against the community by unelected judges and administrators . The self-government aspect of democracy—a community governing its own affairs—has been reduced to almost nothing.Andrew McCarthy writes:
“monstrously hypertrophied”Bill Carpenter writes:
Ironically, substantive due process used to be a tool for conservatives to preserve our social order. Getting rid of it was one of the milestones of liberal jurisprudence, permitting government to regulate health and safety at the cost of property rights and other liberties. With that history, I don’t know that we want to say goodbye to substantive due process forever.LA replies:
I believe Mr. Carpenter is referring to the fact that the judicial distortions of the Constitution were initiated not by liberals in the 20th century but by conservatives in the late 19th century, for example, in Supreme Court decisions that overthrew local laws that were socialistic in character. As Robert Bork wrote, the temptation of judges to alter the Constitution to reach the political results they want must be resisted, whether the judges are conservatives or liberals.N. writes:
One of the most pernicious aspects of the “incorporation doctrine” is the selectivity employed. The most obvious example is the 2nd Amendment, which quite conspicuously has never been included in the doctrine. This selectivity IMO lays bare that the end aim of said doctrine was to achieve certain legislative/judicial ends against States, rather than to merely include certain enumerated rights into State constitutions.LA replies:
Of course the Incorporation Doctrine is confusing and sometimes incoherent. That’s why I focused on the First Amendment, where the I.D.’s most important inroads have been made and where its meaning can be best understood.Pandora’s Box writes:
“Maybe I’m impractical, but if the choice is between seceding from America, and trying to win back America, then I still agree with Samual Francis’s argument that the correct aim for traditionalists is to win back America.”Paul Gottfried writes:
I agree with everything you’ve said about the overreaching federal judge striking down the ordinance enacted in Hazelton, PA against hiring illegals. I’m also in total agreement with your proposal to get rid of the Incorporation Doctrine—and the excessive power that it bestows on judges to strike down laws whose effects might not please them. My question is whether this far-reaching reform for restoring popular control over government and limiting arbitrary judicial power has a snowball’s chance in hell of ever being passed.LA replies:
For 30 years the conservative movement formed itself around the aim to overthrow Roe v. Wade judicially or to enact a Constitutional amendment banning abortion. Leaving aside the fact that I would not support such an amendment (since abortion in my view is the sort of thing that belongs at the state level), and leaving aside the fact that the anti-abortion movement has failed, except for banning partial-birth abortion and except for keeping America opposed to pro-abortion measures in international bodies, the anti-abortion movement nevertheless gave conservatism a principled basis and a unifying cause and a rallying point. It redefined American politics by forcing many on the left to acknowledge the moral legitimacy of opposition to abortion and by moving the “center line” of American politics to the right, at least in this one area.Paul Gottfried replies:
I agree with you entirely!LA replies:
As for me, I think it can succeed.Edward writes:
What the Supreme Court Hath done, the Supreme Court can undo. The answer is to change the composition of the Court and educate the American people. Many of the radical justices on the Court were appointed by Republican presidents. The members of the Supreme Court have to be changed. No constitutional amendment will help if the Court consists of justices who refuse to follow the law and instead replace the rule of law with their own personal subjective feelings.Dylan H. writes:
Great post that got me thinking again about federal v. state powers. It seems to me that among those we need to draw allies from, the general public, the default mental “image” of government is overwhelmingly the federal government. State and local systems lag significantly in participation and even observation (except as they pertain to national politics) in large part because of the warping and emasculation of the Constitution that Lawrence neatly distills here, even though they are in many ways our best (potential) instruments for satisfying representation.Mark Jaws writes:
While I agree with all of the principles stated by Samuel Francis in his advocating a majoritarian reconquest of America, it is not likely to happen unless tradionalists consolidate political power at several state levels. We all know that demographics is destiny. There is no way with the current and ever worsening ethnic situation nationwide in which white voting strength is being inexorably diluted (even in southern states) that we traditionalists will be able to abolish affirmative action and elevate white culture over the multicultural morass being foisted on us by powerful media elites. And even if we did pass one law after another, as the people of California did in the 1990s, federal judges will render our laws and ordnances unconstitutional. However, if you give me a state that is populated with 80% of tough and hardened white traditionalists, then one locality after another will be able to pass and put into force hundreds of Hazelton-like ordnances that would overload even the ACLU.Christopher C. writes:
With regard to the Hazleton case and the recent district court decision, while I, like Mr. Gottfried, agree with you on your criticisms of substantive due process, I believe there is a doctrine missing from the conversation so far: pre-emption.Christopher C. replies:
You’re right. My comment about it being a waste of time to discuss doing away with that aspect of liberalism was over-the-top, defeatist, and impolite.Tim W. writes:
We’re told that there is now a conservative majority on the court. That’s nonsense given Justice Kennedy’s role as a swing vote. But even if another judge in the mold of Scalia were to join the court, replacing one of the liberal judges, there still wouldn’t be a conservative majority. That’s because Scalia isn’t a conservative judge. He just seems to be one since he isn’t a liberal.LA replies:
Excellent points.Robert B. sends this relevant statement by Thomas Jefferson:
At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.
Posted by Lawrence Auster at July 27, 2007 08:17 AM | Send