Sunday, August 8, 2010

Fourteenth Amendment-Phobes

Although most conservatives (and libertarians) seem to have celebrated the recent gun rights victories in McDonald v. Chicago and D.C. v. Heller, there is still a lesser-known minority within this camp that is not so enthusiastic.  They claim that because the Fourteenth Amendment was originally designed to protect former slaves by law in a rather limited way, rather than turn into an end-all be-all way to strike down state laws you don't like, it is a bad idea to use the Fourteenth Amendment for lots of other issues.  Their arguments (detailed below) do make some sense, but I still am not a total skeptic.

For those who aren't aware, the part of the 14th Amendment that some conservatives, libertarians and constitutionalists take issue with is called the "Incorporation Doctrine."  Basically, incorporation means that the Bill of Rights applies to the states.  As many experts have already explained (and I, sadly, discovered), the Bill of Rights did not originally apply to the states.  The Bill of Rights originally was designed as a check by states on federal power; in other words, the B.O.R. was meant to protect states from federal encroachment.  Others have explained how, even though the B.O.R. did not originally apply to the states, state constitutions tend to be rather comprehensive in their descriptions of what natural rights residents have.  According to many constitutionalists, this makes applying the B.O.R. to the states (or at least did in 1789).

Western Connecticut State University History Professor Kevin Gutzman is one current proponent of the anti-incorporation view.  He authored The Politically Incorrect Guide to the Constitution, among other works.  In personal exchanges I have had with him on Facebook recently, whenever I asked him about the Fourteenth Amendment, he usually referred to Former Harvard Law Professor Raoul Berger's 1975 title Government by Judiciary: The Transformation of the Fourteenth Amendment.  From what I've heard, Berger has certainly done his research.  While I'm sure this book presents an excellent case for why the Fourteenth Amendment was not originally intended to be used as it is now, I'm still not entirely convinced that we should use a minimalist approach.

Gutzman also uses the argument that, if we use the Fourteenth Amendment as a reason to overturn what we see as bad state laws that infringe on liberty, that can be eventually used against us to take away liberty, expand government or to enshrine new rights the Founders would never have dreamed of, such as a right to free healthcare or housing. While I understand this concern, I'm just not so sure it's that valid today.  After all, today's Roberts court has been described by many liberals as pretty activist (in a conservative way).  Why the court today or in the near future would use the Fourteenth Amendment to add a whole bunch of fictional rights like a "Second New Deal" is beyond me.  I don't mean to insult Gutzman or his character, but his approach seems a little wimpy.

After all, without incorporation, can any of us imagine all the ridiculous laws that would still be on the books?  We might not even be able to buy contraception in certain states, or get married to folks of other races!  With any judicial approach, there are pluses and minuses.  The key is to make sure the court minimizes the minuses and expands the pluses.  Plus, who knows how long it would have taken states to repeal silly laws like anti-sodomy statutes if Lawrence v. Texas had never been a case.  I think Gutzman's concern is a risk we must take in order to defend liberty across this great nation.  No one ever said a "right" to free healthcare couldn't be overturned by Congress and the president, did they?

A pro-incorporation approach may seem like a "big government" way to deal with the Supreme Court, but I think it's the best we've got.  After all, why should states be exempt from the Bill of Rights?  I'm all about maximizing individual freedom (within reason), so I see no reason why the B.O.R. should not apply to the states, at least in principle.  If a state is violating someone's inalienable rights, and he can't get the law overturned by the legislature or state Supreme Court, why not allow him that final outlet with the federal court process?  A good number of chances to earn your freedom from tyrannical governments to me seems pretty damn reasonable.  If someone can't use the state government to get rid of a tyrannical law that violates the B.O.R., under Gutzman's philosophy, he's pretty much screwed!

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