Judicial Activism Undermines The Integrity Of The Constitution
Nancy Salvato, Director of Constitutional Studies
The Constitution of the United States was established to protect the sovereign right of citizens’ to life, liberty, and the pursuit of happiness. Inherent in the structure of the federal government was a system of checks and balances to assure that a minority would not be positioned to force their will upon a majority. Many argue that the “original intent” of those who drafted the Constitution or any subsequent laws should be taken under utmost consideration when forming any interpretation about its meaning so to uphold the framers’ intent when formulating the rule of law.

Ignorance of the original intent leaves any interpretation subjective to current societal influences or personal agendas. In order to understand the extent that the judicial branch of the federal government has encroached on the original intent of the framers with regard to this rule of law, it is important to revisit some historical precedents which lay the groundwork for an activist federal judiciary.

In a federalist system of government, states retain rights and powers not delegated to the federal government under the Constitution. The powers of the federal government are expressly limited. The framers intended to leave little to interpretation when they wrote the supremacy clause of the Constitution (Article VI) to ensure that national law prevails when state or local law conflicts with it and when they drafted the Tenth Amendment reserving those powers not granted to the national government for the states. States were guaranteed territorial sovereignty.

However, they soon found out that some matters can be seen as under federal or state jurisdiction depending on how the above powers are interpreted. State rights advocates espouse Thomas Jefferson's strict-constructionist interpretation. The federal government is allowed only those powers explicitly enumerated in the Constitution. Proponents of a more active and centralized federal government follow Alexander Hamilton's loose-constructionist interpretation of the Constitution. This grants broader implied powers to the central government.

A conclusion can be drawn that broad interpretation has resulted in the extended power of the federal government and inadvertently to the subsequent unmitigated power currently residing with the Judicial Branch and enabling it to push its activist agenda.

The events leading to the present situation began when Hamilton utilized the “elastic” clause of the Constitution to cite an implied national power to create a federal bank. Jefferson, maintaining a strict constructionist interpretation of the Constitution, considered it unconstitutional for the federal government to create a bank. Rights not explicitly given to the federal government were supposed to be reserved for the states and the people. Hamilton argued it was "both necessary and proper" to create a bank since the Constitution allows collection of revenue, implying there ought to be a central location to put that money.

The commerce clause allowed Congress power to regulate Commerce with foreign nations, among the several states, and with the Indian tribes. The Framers intent was to prevent internal trade barriers between the states and to reserve the right of the national legislature to restrict and regulate trade with foreign nations. Beginning with FDR’s New Deal policies, this clause has been interpreted to justify federal regulation of virtually any activity that might remotely affect interstate commerce.

In 1942, Supreme Court Justice Harlan Fiske Stone ruled that Commerce power extends to intrastate activities which (in a substantial way) interfere with or obstruct enumerated federal powers. This eventually came to mean that the power to regulate trade among the states also included the power to regulate "activities" within the states. Congressional power could be extended to manage the internal affairs of every state in the country. Under this doctrine, the High Court upheld New Deal labor regulations and new federal regulatory powers that were previously held beyond legitimate scope of federal authority.

In the 1960s, "commerce power" provided justification for the courts to uphold the 1964 Civil Rights Act and its prohibition of racial discrimination by private enterprise in hotels, restaurants, and theaters. The uses that the court made of the original constitutional language had nothing to do with the intent of the language or of those who originally drafted and adopted it.

The federal Bill of Rights was never intended to apply to the individual states. State laws, inconsistent with the Bill of Rights, were valid as long as they were consistent with the constitutions of their own states. The court could only strike down state laws that violated the specific restrictions on the states in the Constitution.

Federal courts used the 14th amendment to expand the liberties of the Bill Of Rights to state governments. Through incorporation, the Bill of Rights constitutes a restraint not only on the federal government but also on the states. The argument for the Incorporation Doctrine relies on the 14th Amendment, passed soon after the “War of Northern Aggression”, and claims that the language of that amendment alters the meaning of the Bill of Rights as it had been understood previously by the Framers and John Marshall.

This commenced with the Gitlow case. Benjamin Gitlow was convicted of violating New York's Criminal Anarchy Law through advocating the violent overthrow of the government. Appealing to the Supreme Court, Gitlow and his lawyer argued that the New York law violated his First Amendment freedom of expression "incorporated" by the 14th Amendment's due process clause. The Court upheld Gitlow's conviction and the New York law; however, they accepted the incorporation argument. It was ruled that freedom of speech and of the press are fundamental rights and liberties, therefore they are protected by the due process clause of the Fourteenth Amendment.

In Adamson v. California, 1947, Justice Hugo Black argued the following points. Laws shall not be made or enforced by states, which abridge the privileges or immunities of citizens of the United States. States shall not deprive any person of life, liberty, or property, without due process of law. States may not deny to any person within its jurisdiction the equal protection of the laws. Ultimately, no state could deprive its citizens of the privileges and immunities of the Bill of Rights and therefore that the 14th Amendment "incorporates" the Bill of Rights into the Constitution and applies it to the states. The Supreme Court as a whole has never endorsed Black's total incorporation doctrine. Rather, the Supreme Court incorporated nearly all the individual components of the Bill of Rights under a doctrine called selective incorporation.

The question that begs to be asked is, “How valid is the Incorporation Doctrine and the argument that the 14th Amendment transforms the meaning of the Bill of Rights from a restriction on federal power into one on the states?” Samuel Frances explains in Judicial Tyranny that the Framers of the 14th Amendment had no intention of bringing the states under the constraints of the Bill of Rights. The "privileges and immunities" clause of the 14th Amendment refers to the language of Article IV, section 2 of the Constitution, which declares, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

He offers further evidence of the framers’ intent explaining that the language of Article IV could not refer to the protections of the Bill of Rights since: a) it was written well before the Bill of Rights was drafted; b) the article’s purpose was to require states to accord certain privileges to citizens of a sister state (an entirely different intention from the purpose of the Bill of Rights, which was designed to protect certain rights against the federal government); c) throughout their debates, the First Congress showed no inclination to relate the Bill of Rights to the "privileges and immunities" language of Article IV; and d) early court decisions such as Corfield v. Coryell (1823) made reference to the "privileges and immunities" which the language of Article IV referred (largely the same rights later extended to the freedmen in the 1866 Civil Rights Act).

The Supreme Court, in effect, transformed the Bill of Rights from its original status, namely as a limitation on federal authority, into a specification of the constitutionally guaranteed rights incident to national citizenship.

As I previously explained, the Elastic Clause, Commerce Clause, 14th Amendment, and the Doctrine of Incorporation have been employed to sanction the federal government’s jurisdiction over what the framers of the Constitution left to the states. These paved the way for the federal judiciary authority over busing, quotas, school district boundaries, abortion, Miranda warnings, probable cause for arrest, prison and asylum standards, libel, pornography, subversive speech, and the separation of church and state.

Loose interpretation of the Constitution has further extended the federal court system because courts are not compelled to refer to the actual constitutional text, instead citing penumbras; the idea that specific guarantees of the Bill of Rights imply unspecified rights that the courts may invoke to strike down state laws. The basis of this interpretation is that the US Constitution was devised in part to make sure that rights not enumerated in it would be protected. In various cases, the first, fourth, and fifth amendments have been interpreted to mean the right to privacy. This began with Griswold v Connecticut (1965). This implied right was later interpreted to mean a "right to an abortion" in Roe v. Wade.

From the case Lemon v Kurzman (1971), came the Lemon Test to determine whether certain state laws violate the separation of church and state. This is accepted by some as a constitutional principle even though this notion was never espoused by the framers. This test helps determine whether a law has a secular legislative purpose, is not intended to advance or inhibit religion, and doesn’t foster excessive entanglement with religion. The Reindeer Rule regulates which Christmas displays can be put up by a local government. These cannot have a religious purpose. The Constitution has been interpreted to mean that it doesn’t permit government sponsoring of religion. Secular images such as reindeer are considered permissible. Non secular images must be surrounded by secular images.

How much has the Judicial Branch overstepped their reach? Samuel Francis quotes Professors Quirk and Bridwell, in their book Judicial Dictatorship, “As of 1993 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." Liberal political movements that loosely interpret the Constitution regularly gain ground because they favor government intervention to protect the farmers, laborers, and minority groups.

If we continue to accept the idea that the Constitution is an evolving document, the framers intentions for the rule of law will be lost to the ages. Courts will continue to impose on the language whatever meaning they wish. Federal courts repeatedly strike down popularly and legally enacted laws intended to protect American liberties. Instead they impose their own rulings as laws on communities that never voted for them. In virtually every area where the courts have intruded, their rulings further strip the states and local governments of their legitimate rights and powers and grant illegitimate powers to the federal government. The courts get away with this because neither our elected lawmakers nor the citizens themselves have called them to account for their actions. Have we forgotten the true nature of our Constitution and the limits it places upon centralized power?

As of late, there has been continued debate about amending the constitution to define marriage as a union between a man and a woman. Prior to this there has been 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.”

A better remedy would be to, “Limit the appellate jurisdiction of the Supreme Court.” This is conceivable because Article II, section 2 of the Constitution states that, “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.” Therefore, Congress has the power to enact a law withdrawing Supreme Court jurisdiction in cases involving claims against the states and effectively abolish the Incorporation Doctrine. There is already a precedent established for this type of action in the 1868 case Ex Parte McCardle.

Congress can abolish or limit the jurisdictions of the lower federal courts which they created in the first place. Article III, section 1 of the Constitution reads, "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." Francis suggests that, “By abolishing or limiting such courts Congress would remove the breeding grounds in which many false judicial doctrines are spawned...”

Resources
States Rights
 
Articles
Judicial Tyranny by Samuel Francis