Janice Rogers Brown stated in a speech that "the United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into the 14th Amendment...The historical evidence supporting what the Supreme Court did here is pretty sketchy...The argument on the other side is pretty overwhelming that it's probably not incorporated."
Fourteenth amendment? Incorporation? Janice Rogers Brown? What could any of this mean?
Well, for starters, Janice Rogers Brown is someone you should know. She sits on the United States Court of Appeals for the District of Columbia Circuit. This court is the bullpen for the Supreme Court, as many justices (including nominee John Roberts) have been elevated from this bench.
While Judge Brown may not be the choice to replace O'Connor on the high court, it wouldn't be surprising if it was someone of a similar judicial temperment.
We know all the usual suspects that the conservative judiciary have in their crosshairs, abortion, civil rights, gay rights, flag burning and on and on, but 14th amendment incorporation involves a fundamental transformation of the jurisprudential landscape.
The concept can be loaded down with jargon, but it is relatively simple. The Bill of Rights, as adopted, operated only against the federal government (Congress shall make no law....) As such, the states were not bound to respect these fundamental freedoms under the federal constitution. For example, Massachusetts had a state-supported church well into the early national period.
However, the Civil War and the 14th Amendment changed things. Unlike the original bill of rights, the 14th amendment acted directly on the states. States could not deny due process, equal protection or "privileges and immunities." The question became, though--just what does that mean? Over the years through a somewhat patchwork quilt of decisions, the Supreme Court has determined that many of the fundamental protections expressed in the first 10 amendments are "incorporated" against the states through the 14th. So with regard to the states, free speech and religious expression and rights such as search and seizure prohibitions fall under the 14th.
Janice Brown and like-minded judges object to the expansion of these fundamental guarantees. They want federal constitutional protections stripped away and want these most basic rights left up to state enforcement.
Be afraid, be very very afraid.
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5 comments:
Be afraid of what? That people might actually have to start paying attention to state government and their elected leaders? Have you so little faith in your fellow citizens to think they would elect state officials who would not replicate the original bill of rights at the state level?
I'm sure the states would have willingly embraced civil rights and desegregation without federal intervention, right? The former Chief Justice of Alabama shows me the states are quite willing to embrace religious freedoms.
Actually the whole point of enumerating rights in organic charters is that we DON'T trust elected officials.
While in general, the states do a fine job constitutionally of setting forth rights, it boils down to two basic points:
1) The rights incorporated under the 14th amendment are fundamental to ordered liberty and should not be left to the happenstance of state protection and
2) federalization affords enforcement when states for a variety of reasons might not seek to aggressively remedy wrongs under their particular charters
Why not just do away with the federalist structure altogether then, and simply go to a central government?
I mean, that's an argument that has some merit, but you cannot pretend that this is what the Framers had in mind.
rammage @ www.atlasblogged.com
rammage @ www.atlasblogged.com, I forgot to thank you for your thoughtful comment and please visit again!
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