Among conservatives, just about everyone hopes to see Brett Kavanaugh join Neil Gorsuch on the United States Supreme Court. And we all have our little lists of activist precedents that never would be missed, should they ever come up for review before a thoroughly originalist court. Some think big: Nothing less than Roe v. Wade is in their sights. Others, like me, have it in for Miranda v. Arizona and a dozen other rulings that have softened and impeded America’s system of criminal justice in modern times.
One item conservatives have a big beef with is Kelo v. New London, the 2005 decision that allowed a city in Connecticut to take Susette Kelo’s home and sell it for private development, calling such action a seizure for “public use” since it was intended to benefit the city’s economy. A particularly sore point about that 5-4 ruling is that it had the vote of David Souter, a man who’d been sold to conservatives as a “home run” for our cause when he was nominated to the high court in 1990.
Though it may be cold comfort to the losing party, Kelo has been fairly well dealt with among the states by enactment of new limits on the use of eminent domain. Those of us who hope for a definitive repudiation of Kelo by the Supreme Court, however, shouldn’t get our hopes up. An originalist court would not have ruled the other way in Kelo. An originalist court wouldn’t even have taken up the case.
Kelo’s 19th-Century Forerunner
In 1833, the court was asked, in Barron v. Baltimore, whether the U.S. Bill of Rights “ought to be so construed as to restrain the legislative power of a State, as well as that of the United States.” Chief Justice John Marshall, that great champion of federal power, ruled against Susette Kelo’s 19th-century forerunner.
Baltimore’s street improvements had caused runoff that silted up the river near John Barron’s wharf, rendering it useless. He sued and won a $4,500 judgment, but it was reversed on appeal. So Barron appealed to the U.S. Supreme Court, saying his property had been taken without just compensation, in violation of the Fifth Amendment of the U.S. Constitution.
Before the justices could consider whether Barron had been treated fairly, they had first to decide whether it was any of their business. Marshall wrote for a unanimous court: “The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States.”
Marshall noted that the main body of the Constitution contained, in Article I, Section 9, “limitations intended to be imposed on the powers of the general government”—no ex post facto laws, no titles of nobility, etc.—and, in Section 10, limitations “which were to operate on the State legislatures”—no ex post facto laws, no titles of nobility, no impairment of contracts, no coining money, and so forth, with each subsection “by express words applied to the States.” By contrast, no words in the Constitution’s first eight amendments look beyond the federal government, and Marshall would have been surprised to find such a thing.
Had the people of the several States, or any of them, required changes in their constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and would have been applied by themselves. A convention would have been assembled by the discontented State, and the required improvements would have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two thirds of Congress, and the assent of three fourths of their sister States, could never have occurred to any human being as a mode of doing that which might be effected by the State itself.Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the constitution of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.
What was the purpose of the Bill of Rights, then? It was, Marshall said, to quiet “serious fears” among the Constitution’s ratifiers that the new federal government’s powers “might be exercised in a manner dangerous to liberty.” The ratifiers sought “security against the apprehended encroachments of the general government, not against those of the local governments.”
Marshall’s view is confirmed by the fact that when the first Congress considered James Madison’s proposals that were to become the Bill of Rights, it rejected this one: “No state should infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech or of the press.”
Most of Madison’s other amendments, including the one Barron invoked, were approved and ratified. “These amendments contain no expression indicating an intention to apply them to the state governments,” Marshall wrote. “This court cannot so apply them.”
And Then the War (and Reconstruction) Came
So Barron was out of luck. But what has happened since then to change things? The Civil War is what happened. In its aftermath, the 14th Amendment was added to the Constitution. That amendment had two purposes: the open goal of protecting the rights of emancipated slaves, and, some say, the hidden agenda of establishing “federal judicial supremacy over the local legislatures . . . in the whole range of national economy.”
That’s how historians Charles and Mary Beard describe the politics of the Reconstruction Congress, as revealed in later statements by Republican Congressmen Roscoe Conkling of New York and John Bingham of Ohio. The latter is the author of the amendment’s key sentence:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Years after the amendment was approved, Bingham said he designed those clauses specifically to overturn Barron. And in the fullness of time, his purpose has certainly been achieved.
“By a few words skillfully chosen,” the Beards write, “every act of every state and local government which touched adversely the rights of persons and property was made subject to review and liable to annulment by the Supreme Court at Washington.”
They add that although the general public “did not grasp the full meaning of the Fourteenth Amendment while its adoption was pending, some far-sighted editors and politicians realized at the time that it implied a fundamental revolution in the Constitution.”
Democrats in the Ohio and New Jersey legislatures managed to have their states’ resolutions of ratification rescinded. Opposition was even stronger in the Southern states, but those states were under military occupation, and the Radical Republicans were able to command ratification there as the price of rejoining a Union which, by the lights of the slain Lincoln, the South had never left.
The result, the Beards say, was a power grab: “Thus the triumphant Republican minority, in possession of the federal government and the military power, under the sanction of constitutional forms, subdued the states for all time to the unlimited jurisdiction of the federal Supreme Court.”
“Unlimited jurisdiction” may have been what Bingham’s group had in mind. But was such jurisdiction actually conferred? It’s a principle as old as Madison and Jefferson that a constitutional clause must be given the meaning in which it was understood by the country at the time of its adoption. In the event of a discrepancy between the framers’ intention and the ratifiers’ understanding, the ratifiers trump the framers, because they provide the broadest and closest representation of the country at large and it is their consent that makes the measure legitimate. If the ratifiers’ understanding were to be ignored, then the words with which the Constitution begins—“We the People”—would become a lie.
Wholesale “Incorporation”
In 1977, Harvard Law Professor Raoul Berger examined the amendment’s legislative history. In Government By Judiciary: The Transformation of the Fourteenth Amendment, he wrote that among authorities on the subject, “all are agreed” that the amendment’s key purpose was to “embody and protect” the Civil Rights Act of 1866. That act provides
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Nothing there about prayer in public schools, or abortion or the death penalty or pornography or “marriage equality” or most of the other points the federal courts have since expounded under the 14th Amendment’s authority. Such issues were “incorporated” into the amendment by federal court decisions long after it was ratified.
But according to Berger, wholesale “incorporation” was not countenanced by the amendment’s framers, who chose to incorporate only one clause of the Bill of Rights, and that by spelling it out. The rule against depriving any person “of life, liberty, or property without due process of law,” imposed on the federal government by the Fifth Amendment, is extended to the states by the 14th. (Similar incorporation of the rule against taking private property without “just compensation,” which figured in Barron and in Kelo, was considered and rejected.)
Rep. Bingham and his like-minded colleague, Senator Jacob Howard of Michigan, spoke in support of incorporating the first eight amendments, but their statements fell on deaf ears in Congress. When the 14th Amendment went to the states for ratification, its key section was represented solely as an embodiment of the Civil Rights Act. (The four other sections deal with congressional apportionment, disqualification of ex-Confederates for federal office, repudiation of the Confederate debt, and enforcement of the amendment “by appropriate legislation.”)
Berger cites a 1908 Johns Hopkins study of “speeches concerning the popular discussion of the Fourteenth Amendment” that were given while its ratification was pending: “There does not seem to have been any statement at all as to whether the first eight amendments were to be made applicable to the States or not.” Citing a 1949 Stanford examination of the state ratification proceedings, he writes: “There is no intimation therein that ratification would produce radical changes in the States’ judicial machinery.”
“If there was a concealed intention to go beyond the Civil Rights Act,” he argues, “it was not ratified, because, first, ratification requires disclosure of material facts, . . . and, second, a surrender of recognized rights may not be presumed but must be proved.”
Berger further observes that “the cases which followed on the heels of the Fourteenth Amendment continued to hold the Bill of Rights inapplicable to State action.” It wasn’t until decades later that “incorporation” kicked in. When it did, it was not by any act of the people, but by a snowballing series of judicial decrees.
How Originalism Can Restore “We the People”
Was the 14th Amendment even covertly intended as a broad surrender of states’ rights? Berger concludes that if anything, the congressional record proves the contrary:
The constant reiteration that the purpose of the Amendment was to constitutionalize the Civil Rights Act, the frequent tributes to State sovereignty, and recognition of powers reserved to the States by the Tenth Amendment, in which Bingham joined, unite to repel an inference that the framers intended to interfere with State conduct of its own affairs otherwise than as described in that Act.
So it seems that from an originalist standpoint, federal judges really don’t have any business deciding whether the city of New London can take Susette Kelo’s house away from her.
Personally, I would gladly leave that matter to the state of Connecticut, if only federal judges would also butt out of all the social issues they’ve taken over, and leave them to the states to decide. Far more than Kelo, those other issues involve questions of life and death, and the states could not possibly handle them in a worse fashion than our federal judiciary has done. Hundreds of thousands of innocent Americans (tens of millions, if you count those who were killed in the womb) have died in consequence of the federal courts’ activist decisions—decisions that have no right, and often don’t even ask, to be considered as reflecting the Constitution’s original, true, ratified meaning.
Let Gorsuch be joined, then, by his soon-to-be colleague Kavanaugh. May their tribe increase. But don’t expect them to set things right overnight, or anywhere near it. The Supreme Court has been “incorporating” the Bill of Rights into the 14th Amendment for a long time now, and the justices take a dim view of legal briefs that inform them they’re abusing their power.
Even a confirmed originalist like the late Antonin Scalia was unwilling to pull up the Supreme Court’s accumulated juris imprudence by the roots. He once wrote that interpretation by the original meaning will often have to defer to more recent precedent if it is not to be “so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance.” And Professor Berger, toward the end of his great dissection of judicial activism, shrank likewise from “the massive task of furnishing a blueprint for a rollback.”
Nonetheless, a rollback there should be—and it should come at the hands of the American people themselves, not just through the accession of better jurists. I used to believe an omnibus constitutional amendment could do the job, laying waste to most of the court’s activist doctrines while preserving those few decisions (primarily Brown v. Board of Education) that are worthy of ratification. I still favor such a measure, even though I realize its complexity would make it almost impossible to design, be understood, and gain the supermajority support a constitutional amendment requires.
Adding to the problem with such a comprehensive approach is the fact that with the passage of time, the preponderance of popular opinion that once could have overturned the school prayer bans, for example, has long since disappeared. Judicial activists, in other words, have had their way with us. Only the public’s support for the death penalty remains strong, in spite of the activists’ best efforts. And a measure effectuating that viewpoint on that issue is what I advocate today.
In any case, whether in that form or in some other, Americans need to take a more active role in determining these vital questions of constitutional interpretation. Until we do, “We the people” will remain mere kibitzers around the document that bears our name.
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