[another hobby horse of mine]
"7 October 2011
Dear Adam et al at FIRE [Kissell; Foundation for Individual Rights in Education]
I appreciate the work that you folks are doing, because your hearts are in the right place; but I have a fundamental constitutional question about this 'free speech' matter. I'm wondering if you can help me (as obviously, you folks have researched this matter, and its 'paper trail', a lot).
(1) The federal government does not guarantee the citizens in any state anything except (1) a republican form of state government, and (2) via the 14th Amendment, "equal protection of the laws" - ie, in terms of the original intent, as I understand it, that state laws must in effect be color blind; no respecter of persons; all are equal before the law; and cannot be deprived of "life, liberty or property, without due process OF law" (my emphasis) - ie, there cannot be arbitrary government, acting outwith the law.
(2) The Constitution is a contract, stating what the federal government can and cannot do. The Bill of Rights is an example of what rights and powers the federal government does and does not have - and any others not specifically delegated to it are retained "by the people" (with respect to rights: the 9th Amendment), or "are reserved to the States respectively, or to the people" (with respect to powers: the 10th Amendment). The point is that the several States were not surrendering up much power to the federal government; just in matters dealing with other countries, etc etc. All else not limited and delegated (in the words of Madison: "few and defined") remained in the purview of the several States, as secured for their citizens in law in their state constitutions.
(3) Somewhere along the line, the Bill of Rights - ie, an example of rights not allowed to be trampled on, or adjudicated upon, by the federal government, since it was not ceded the power to do so by the Constitution - has been turned on its head, and made to apply FROM the federal government (& its judiciary) TO the states. Without an amendment to this effect, this would appear to have been a bit of legalistic legerdemain; accomplished apparently by a VERY liberal reading of the 14th Amendment's 'due process' clause.
Instead of just taking this clause as a statement outlawing arbitrary law, liberal law school professors (presumably seeing their chance to establish a unitary form of government in the country, whereby they could control the whole from the top; easier to take over that way, bend to your interests), interpreted this clause as 'incorporating' the Bill of Rights (and by inevitable extension, all those rights and powers previously retained by the people and the States, and held in check by their state constitutions) into being now residing in the purview of and control of the federal government, and its Supreme Court's interpretation thereof. Before this 'principle' of 'incorporation' (nothing black-letter legal about it; it's simply an opinion, that the Supreme Court has ended up agreeing with), all these rights - freedom of speech and press, etc etc - were held within the purview of the several States And it is that turning of the Constitution on its head that I object to.*
I agree that our rights preceded the Constitution, for that argument. I don't agree that the Constitution guarantees those rights - legally. Only by what has come to be custom. And I don't like the way that was brought about. It was brought about, as I indicate - and in my opinion - by sleight of hand.
(4) A thought here: the 14th Amendment made the citizens of every state also citizens of the United States; and the federal government could thenceforth theoretically override any state constitution's provision that doesn't give its citizens the rights and privileges of ALL the citizens of the United States - or that doesn't apply the laws applicable to the United States/federal government to their citizens. But that didn't happen at the time (and so it wasn't recognized as part of 'the deal' at the time; thus going to the legitimate legal principle of original intent). Nor for some time later. So one has a right to the assumption that that wasn't what was meant (intended).
In my research into this curious matter, some years ago - the Matter of The Pilfered Constitution - I had to trace the paper trail all the way down to around 1941, for the first time (at least as I could find) that the Supreme Court interpreted the First Amendment as applying from the federal government to the States. (It involved, as I recall, a person burning the American flag as a political protest, and getting censured for it by his state, under whatever state ordinance; with the Supreme Court citing the First Amendment to let him off.) And that seemed to open the door for more of the same; ie, in that vein, of court interpretation.
It seems rather strange that constitutionalists didn't kick up a major fuss over it at the time. Or maybe they did; and that was the beginning of control of the mainstream media in this regard. In any event: the cry, down to our day, of 'our constitutional rights', seems due to a misunderstanding of the Constitution as she is wrote, not as some would like it to be interpreted, or assume that it actually reads. They need to actually read it.
As to the 14th Amendment opening this door:
(5) The 'principle' of 'incorporation' found by some in the 14th Amendment - assumed to be there - is not the only affront to legitimacy occasioned by that amendment. It turns out that the 14th Amendment itself may not even have been ratified properly anyway. So maybe the answer to a number of judicial errors (the 'personhood' of corporations is involved in this matter as well) can be overturned in one fell swoop: by challenging stare decisis, in declaring the 14th illegally obtained, and reinstituting its best features - legally this time - without the toxic ones. And maybe then The People can have some faith and confidence in their constitutional law again, as writ. Not as proclaimed by devious players in the game of government.
(6) The federal government was illegally made the guarantor of various domestic issues, like 'free speech'. There were debates on these matters between the Federalists and the Republicans in the 1790s and 1800s. But I still say that the Supreme Court has no legitimate business ruling on issues that are the rightful business of the people in their several states. The states, being states, and not just pretend entities, have the inherent power to regulate the 'rights' of their citizenry. From fornicating in the streets; asking for photo IDs in order to vote; permitting, or not, abortion - etc etc. There is a legitimate legal concept called 'contemporary community standards', which means, in effect, government by the consent of the governed - and that consent may vary from state to state. One size does NOT fit all, in a federal form of government. A majoritarian attitude towards art in the public museums and galleries of the state of New York may well differ from the majoritarian attitude towards the same in the state of Indiana, say; etc.
I'm saying that 'rights' can be legitimately regulated, as the price of living in a social construct we call a 'community'; and absent a clear and specific delegation of power to the federal government via the Constitution to regulate on such matters, that regulation legitimately takes place within the several States. As the 'laboratories' that they are, for such things. Places to try out various approaches to societal matters. Welfare issues; and so forth and so on. The federal government and its Supreme Court have no rightful business forcing all the states to fit their procrustean bed, of 'interpretation'. It was the same with the Roe v Wade decision. And it is the same with 'free speech' issues.
We give the federal government total, unitary control over us to our peril. You folks at FIRE may not like that take on the Constitution. But you'll have to convince me that the truth of the matter is otherwise.
And not to say that the principle of 'free speech' is not a good thing. Indeed, it is. Letting the federal government, and its Supreme Court, sit in ultimate judgment on what constitutes free speech is another matter entirely. And one that I don't support.
Let me know where I'm wrong in my take on this matter. I will be very happy to hear about it. Because I care about such matters, deeply. The matter, in its essence, of the rule of law, as opposed to the rule of men, with agendas.
* And which is behind Roe v Wade, eg. That sort of thing is rightfully - ie, constitutionally - a matter for the several States to decide for themselves.
By rights, those who want the federal government to run the whole show should propose an amendment to the Constitution saying something like: 'All those powers previously reserved to the States or to the people shall now reside in the federal government." And let's see how they go with the debate - fair and square."