Friday, July 31, 2020


[Commentary begins at the end of this note]

Note to my loyal Blogees:

Following the first of these Blogs on May 22 (entitled “Introduction”), I have written and published commentary on twelve of the worst Supreme Court decisions. I have covered judicial review, examples of egregious federal power, and the Fourteenth Amendment. Today’s essay — “Incorporation” of the Fourteenth Amendment”— explains how one provision of that amendment has wrongly been interpreted by the Supreme Court, now providing a means by which it can apply virtually the entire Bill of Rights as a constitutional check on the conduct of every state in America despite the Tenth Amendment.  

The Gitlow case marked the ending of one constitutional era, and the beginning of another. Henceforth, the Court’s jurisdiction would be greatly enlarged, and its drift into social policy rather than strict interpretation of federal statutes and the Constitution would eventually run amok.

The current era, which finds the Court deeply involved in what are strictly Tenth Amendment state business and legislative policy matters, has not been a kind one in almost every area of state government conduct, including but not limited to economics, speech, family, marriage, the Eighth Amendment, personal  autonomy and, more important than any of the foregoing, life and death.

As I conceived these essays, it was my plan to continue the worst Blogs indefinitely, covering such cases as Lochner and West Coast Hotel (freedom of contract), Roth-Alberts (pornography), Lawrence (marriage), Hudson (cruel and unusual punishment), Griswold/Roe/Casey (abortion), Buck (procreation), Arver (conscription), Maher (population control) Kelo (eminent domain), Boumediene (terrorism). And others.

And, most important of all, Washington v. Glucksberg, where the Supreme Court of the United States ruled that an American citizen had no constitutional right to die.

But there will not be any of those essays, or others like them. 

For two reasons.
First, researching, writing, editing, and posting (with, as you have noticed, less-than-ideal available software) is too consuming, and interferes with my other commitments.  Second, related to my time constraints, is that the Blog’s statistics reveal that not enough people to justify my efforts even open the posts, let alone read them or comment.

No hard feelings. I recognize priorities differ. 

Understandably, today much writing about constitutional law — in various media — competes for an audience. Apparently, there is not so much interest in why the Supreme has been able to exercise so much power in a supposedly power-sharing tripartite government. Nor, how at the root of this judicial power-grab one sees the driving, unsatiated forces of altruism, collectivism, and statism.

Maybe another day.

In the meantime, those die-hards who want to continue receiving the kind of material that was formerly in my former Blogs — but only those who do not already receive my usual emails — should do the following: Send an email to simply saying you would like to continue receiving my occasional legal and political commentary. I will then build a separate Outlook list of those ex-Blogees.


Now to the finale, and Gitlow v. New York, the “incorporation” kiss of death.

“Incorporation” of the Fourteenth Amendment
An examination of the Incorporation Doctrine begins with an undeniably valid premise: The Bill of Rights was intended by Madison, who introduced it,  the Congress that approved it, the states that ratified it and the voters who elected the legislators who voted for it, to apply only to actions by the federal government. Indeed, as I have said repeatedly, the First Amendment begins by reciting, “Congress shall make no law . . . .” My italics.)

Never was a political intent, or a legal statement, clearer. So much so that even those who would have it otherwise concede, as they must, that in the early days of the Supreme Court of the United States, the Supreme Court of the United States ruled squarely that the Bill of Rights was not applicable to the states

How, then, has the Court been able to hold unconstitutional under the federal Constitution acts of the states allegedly violating such rights as free speech, protection against double jeopardy, and many other guarantees found in the federal Bill of Rights?

The answer lies in the Incorporation Doctrine and the Due Process Clause of the Fourteenth Amendment: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” 

Even though the federal Bill of Rights contains at least thirty specific “rights”- type guarantees —one of which is the Fifth Amendment’s own Due Process Clause — in a series of cases beginning with Gitlow v. New York in 1925, the Supreme Court ruled that the Fourteenth Amendment’s Due Process Clause “incorporates” many of those same guarantees, thus making them applicable to state action.

Ironically, indeed fittingly, it all began with a New York Communist.

At 18, Benjamin Gitlow was a Socialist. At 22, he was the first president of the Retail Clerks Union of New York, and at 26, Gitlow was elected to the New York State Assembly. 

In 1919, Socialists of a more revolutionary flavor, like Gitlow and the legendary John Reed, had founded the Communist Labor Party, which later became the Communist Party of the United States. Gitlow ran as the Communist candidate for Vice President of the United States in 1924 and 1928. Before his quixotic quest for high political office, Gitlow spent three years in New York’s Sing Sing prison on a conviction for violating that state’s 1902 criminal anarchy law. That statute, wrongly, made it a crime to encourage the violent overthrow of the United States government. 
Gitlow’s indictment was in two counts. The first charged that the defendant had 

advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled ‘The Left Wing Manifesto’; the second that he had printed, published and knowingly circulated and distributed a certain paper called ‘The Revolutionary Age,’ containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence and unlawful means.” (My italics.)

Initially at his trial, and later in two New York appellate courts, and eventually in the Supreme Court of the United States, Gitlow argued that New York’s criminal anarchy statute as written and applied to him violated the Due Process Clause of the Fourteenth Amendment. 

But not because there were any procedural irregularities in either the law or in the way it was applied. No, indeed. Gitlow argued that the statute was “substantively” unconstitutional because it punished what Gitlow rightly characterized as “pure speech/press.”

In reality, though not explicitly, Gitlow was invoking the First Amendment’s speech/press protections. 

There were two problems with his argument. One, was that neither the speech/protections provisions of the First Amendment, nor any other of its guarantees, applied to the states. Nor, for that matter, any other of the first nine amendments. Second, in invoking the Fourteenth Amendment’s Due Process Clause, he was invoking a provision that while applying to the states, did so only procedurally

The substantive speech/press provisions of the First Amendment are quite different from the procedural Due Process Clause of the Fourteenth Amendment.

Both New York appellate courts held the criminal anarchy statute constitutional.

The Supreme Court of the United States made two rulings. 

The more important one set the stage for later “incorporation” of virtually every provision of the Bill of Rights into the Fourteenth Amendment’s due process guarantee, thereby endowing that previously purely procedural amendment (“due process”) with the power to test the substantive (“rightness,” “wrongness” or “reasonableness”) content of all state laws. Said the Supreme Court:

For present purposes we may and do assume that freedom of speech and of the press —which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. (My italics.)

The Supreme Court of the United States was about to base one of its most important decisions, past and future, on a mere “assumption,” even though the forthcoming decision was an indefensible disregard of precedent. The Court made no effort in its opinion to defend its ignoring of constitutional history going back as far as Magna Carta in 1514. In short, it was a gross abuse of the power of judicial review, and a cavalier example of judicial policy-making.

Consider: Every one of the nine justices were able to see that lurking somewhere within the Due Process Clause of the Fourteenth Amendment the Court was able to find First Amendment speech/press protection “content,” and thus the Fourteenth’s guarantee that no state shall “deprive any person of life, liberty, or property, without due process of law” really meant that “no state shall abridge freedom of speech/press.” And if a state law affecting speech was challenged on the ground that it did abridge free speech/press, the Supreme Court had the power to assess the substantive content of that law (e.g., punishing anarchists’ pure speech/press) to ascertain if it passed constitutional muster—by some unstated standard or other.

That left open the question of what criteria — what “test”? — the Court could use to decide whether, substantively, a state law was constitutional or not.

The Gitlow Court continued by observing that there was no absolute right of free speech or press under the First Amendment:

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. * * * Reasonably limited . . . this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic. (My italics.)
So, according to the Supreme Court in 1925, free speech/press was not absolute—a mere “privilege,” subject to “limitation.”

But by what standard? To what can pure speech/press be subordinated?

The Supreme Court of the United States was not bashful about its answer:

That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. (My italics.)

Having concluded that Gitlow’s over-the-top Communist speech/press rantings were indeed “inimical to the public welfare,” the Supreme Court upheld his conviction and sentence, providing some hyperbole of its own:

The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.

Even though the Supreme Court upheld the New York criminal anarchy statute, and with it Gitlow’s conviction, more important for the future of American liberty was that the Court tested the New York law not by the Constitution’s Fourteenth Amendment procedural due process , but instead, by the First Amendment’s substantive speech/press protection. The Court did this by incorporating First Amendment substantive protection of speech/press into the Fourteenth. The essence of the Court’s “test” was whether “substantively” the statute was “inimical to the public welfare” and thus constitutionally within New York’s power to protect that public.

Gitlow’s right to free speech/press was to be sacrificed to the welfare (i.e., need for security) of others (i.e., the collective) under state law backed by government force (i.e., statism).

Justice Oliver Wendell Holmes authored a dissent for himself and Justice Louis Brandeis.

Most interesting about their dissent is that Holmes and Brandeis shared their colleagues’ “assumption” that the Fourteenth Amendment’s procedural Due Process Clause contained First Amendment “content” which, through “incorporation,” would be read into the Fourteenth Amendment.

Why, then, did they dissent? 

Not because they believed New York was powerless to punish subversive speech/press, for they found no substantive fault with the statute itself. Punishing an anarchist’s speech/press was not “inimical to public welfare.”

And not because they believed the Court lacked the judicial power to evaluate the substantive content of the statute, for they too assumed that the Fourteenth Amendment’s Due Process Clause could substantively test the constitutional appropriateness of the criminal anarchy statute.

Holmes and Brandeis dissented because they disagreed with their colleagues only about whether, under the facts of that case, Gitlow’s speech was truly “inimical to the public welfare.” If it were, it was fine with Holmes and Brandeis if Gitlow was sent up the river to Sing Sing prison. If not, he should have been set free. 

For Holmes and Brandeis, those facts were to be evaluated under the test the Court had developed in the earlier World War I free speech case of Schenck v. United States, where Schenck and others went to prison for protesting conscription. In Schenck, Holmes had written for the majority that “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent.”

In Gitlow, Holmes and Brandeis thought not; there was, in their opinion, no “clear and present danger.”

It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. (My italics.)

Thus, Holmes and Brandeis, too, subscribed to their colleagues’ belief that the Fourteenth Amendment “incorporated” the free speech/press guarantee of the First Amendment, and that state action allegedly violating “due process” could be examined substantively by the judicial power of the Supreme Court in order to ascertain whether the law under attack was constitutionally acceptable by whatever standard at least five justices saw fit to apply.

During the ensuing years, “incorporation” of virtually all other provisions of the Bill of Rights has occurred, violating individual rights, limited government, federalism, separation of powers, the appropriate scope of judicial review, and erasing the difference between the explicit provisions of the Bill of Rights and the more amorphous, and formerly procedural, Due Process Clause of the Fourteenth Amendment.

A dozen years after Gitlow, the Supreme Court accepted the 1937 case of Palko v. Connecticut.

Connecticut had enacted a statute allowing the government to appeal in a criminal case. Palko had been indicted for second-degree murder. He was convicted, and appealed. The Connecticut Supreme Court reversed and ordered a new trial. This time Palko was convicted of first-degree murder, and sentenced to death. (Be careful what you ask for.)

He appealed again, and eventually his case reached the Supreme Court of the United States. 

There, Palko argued his second trial and conviction violated the Double Jeopardy Clause of the Fifth Amendment. Fifth Amendment? Whoa! But that applies only to action by the federal government, doesn’t it? Maybe not. Ask Benjamin Gitlow.

Thus, the question for the Supreme Court was whether Palko's second conviction violated the protection against federal double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause.
Justice Benjamin Cardozo, for the eight justice majority:

. . . the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress . . . or the like freedom of the press . . . or the free exercise of religion . . . or the right of peaceable assembly, without which speech would be unduly trammeled . . . or the right of one accused of crime to the benefit of counsel . . . . In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states. (My italics.)

Cardozo was offering his Court, and subsequent ones, a Bill of Rights menu from which it could pick and choose which constitutional provisions could be incorporated from the first nine amendments into the Fourteenth, and through its Due Process Clause then test the substance of the state’s homicide law.

“Ordered liberty?”

Cardozo elaborated: “A scheme of ordered liberty. A principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (My italics.)
What is meant by “justice”? How does a Supreme Court justice ascertain the “traditions and conscience of our people”? And whatever those are, and however determined, which of them are “fundamental,” and how do we know that they are? These Cardozo-inspired questions sound like Winston Churchill’s observation about Soviet Russia It was a “riddle wrapped in a mystery inside an enigma.”

Sad to say — because he was, after all, a revered Associate Justice of the Supreme Court of the United States — Cardozo’s opinion is utter mumbo jumbo. “Ordered liberty” is worse than no test at all, because it provides all courts, and especially the Supreme Court of the United States, with a roving commission to translate the policy values of unelected and unaccountable philosopher kings/queens into what is supposed to pass for constitutional law. Overriding the states’ voters. Overriding governors. Overriding legislatures. That our republican system and individual rights such as life, liberty, and property should rest on such indefensible clichés is indefensible. 

The Supreme Court upheld Palko's second conviction for murder first degree. 

In his majority opinion, Associate Justice Cardozo formulated principles that were to inform the Court's due process decisions for the following decades. He noted that some Bill of Rights guarantees — such as freedom of thought and speech — are “fundamental,” and that the Fourteenth Amendment's due process clause absorbed those fundamental rights and applied them to the states. Protection against double jeopardy was not, at least then, a “fundamental” right. 

Some thirty years later, in Benton v. Maryland,[1]  Cardozo’s successors expressly overruled its decision in Palko and incorporated the Double Jeopardy Clause of the Fifth Amendment into the Fourteenth. That it was now a fundamental right did not mean anything to Mr. Palko. He died in Connecticut's electric chair on April 12, 1938.

As Professor Raoul Berger explained, “[a]s in the case of the Chinese mandate from heaven, we learn a right is fundamental only after the Court attaches that label. Ordered liberty is too vague to describe a national objective. It says that order and liberty are both to be sought, but provides no standard for reconciling the eternal conflict between them. * * * It is a vehicle for whatever meaning the Court gives it, and thus enables the Court to apply its own conceptions of public policy.” (My italics.)

There is no need to take Professor Berger’s, word for it. The highly respected Supreme Court Associate Justice Byron White once observed that “ordered liberty” is “[n]o more than a means whereby a majority of the Court [five justices] can impose its own philosophical predilections upon State legislatures or Congress.” 

In light of the foregoing, it’s useful to examine a more modern classic Fourteenth Amendment/substantive due process/incorporation decision. 

Timbs v. Indiana[2] was a 2019 unanimous decision of the Supreme Court. Let’s see what provision of the Bill of Rights was incorporated via the Fourteenth Amendment, what substantive due process tests were applied, and upon what rationales the Supreme Court rested its decision/opinion.

The question before the Court in Timbs was whether the federal Eighth Amendment’s Excessive Fines Clause — “Excessive bail shall not be required, nor excessive fines imposed. . . .” — is an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. 

For the Court’s majority, Justice Ginsburg wrote that “[l]ike the Eighth Amendment’s proscriptions of ‘cruel and unusual punishment’ and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is fundamental to our scheme of ordered liberty,’ with “dee[p] root[s] in [our] history and tradition.” * * * The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.” (My italics.) A double-header: “ordered liberty” and “deep roots.” Ipso facto!

So, all the ingredients were present: The federal Fifth Amendment constitutional right of no excessive fines, the Fourteenth Amendment’s Due Process Clause, the Substantive Due Process tool, the Incorporation Doctrine, the “Ordered Liberty” and “Deep Roots” test—and the facts which the Court found satisfied those tests. 

Accordingly, the Eighth Amendments excessive fines” was incorporated, and the substantive due process tests of fundamental to our scheme of ordered liberty, with “dee[p] root[s] in [our] history and tradition” were applied

Justice Thomas concurred in the Timbs result, but wrote a separate concurring opinion. He rightly eschewed the Due Process analysis that was at the foundation of not only the Timbs excessive fines result, but all of those from the first incorporation in the Gitlow case.

I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.

The Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” “On its face, this appears to grant . . . United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status.”[3] But as I have previously explained, this Court “marginalized” the Privileges or Immunities Clause in the late 19th century by defining the collection of rights covered by the Clause “quite narrowly.” Litigants seeking federal protection of substantive rights against the States thus needed “an alternative fount of such rights,” and this Court “found one in a most curious place,”— the Fourteenth Amendment’s Due Process Clause, which prohibits “any State” from “depriving] any person of life, liberty, or property, without due process of law.”

Because this Clause speaks only to “process,” the Court has “long struggled to define” what substantive rights it protects. The Court ordinarily says, as it does today, that the Clause protects rights that are “fundamental.” Sometimes that means rights that are “‘deeply rooted in this Nation’s history and tradition.’” Other times, when that formulation proves too restrictive, the Court defines the universe of “fundamental” rights so broadly as to border on meaningless. See, e.g., Obergefell v. Hodges . . .  (“rights that allow persons, within a lawful realm, to define and express their identity”); Planned Parenthood of Southeastern Pa. v. Casey . . .  (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”). 

Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” 

And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v. Wade; Dred Scott v. Sandford. 

The present case illustrates the incongruity of the Court’s due process approach to incorporating fundamental rights against the States.

Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions, or that the State failed to provide “some baseline procedures.”  His claim has nothing to do with any “process” “due” him. 

I therefore decline to apply the “legal fiction” of substantive due process. (My italics throughout.)  

“A legal fiction,” indeed.

One that has corrupted the well-intentioned Fourteenth Amendment's procedural Due Process Clause and  constitutional jurisprudence generally, severely and shamefully diluted the Tenth Amendment’s importance and, sadly, irreparably tarnished the reputation of the Supreme Court of the United States.

[1] 395 U.S. 784 (1969).
[2] 586 U.S. ___; 139 S.Ct. 682 (2019).
[3] Some citations omitted throughout.
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