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Politics

A Short History of Rights in America

By
Jared Lovell
|
December 10, 2019
The concept of "human rights" has so often been used to expand the size and scope of the American central state. "Rights," in the wrong hands, can be a rhetorical tool of Power.
Politics

A Short History of Rights in America

By

Jared Lovell

|
December 10, 2019

The concept of "human rights" has so often been used to expand the size and scope of the American central state. "Rights," in the wrong hands, can be a rhetorical tool of Power.

A few weeks ago, CJay Engel published an article titled “Can Rights-Theory save the West?” in which he argued that sustaining a free society requires more than abstract theories about rights. As CJay put it:

A people that depend on rights theory as their line of defense against power will find themselves in a constant state of internal strife as meaningful community and harmony are produced not on theories but on strong social bonds. We must look beyond slogans such as "toleration" and "inclusiveness" and "rights" and look to a positive prescription of the elements of a sustainable society…
A rejection of authoritarianism and international statism in our time, therefore, is not to be spread by the universalization of rights, but by a return to real communities; communities that may very well have been destroyed over the course of the twentieth-century.

I would argue that not only is rights-theory inadequate by itself to sustain a free society, but has actually been used by the courts over the course of American history to break down those real communities and societal institutions that CJay speaks of in the name of empowering the individual. Libertarians usually think the power of the state and the freedom of the individual as being inherently at odds with one another, as if this is the main battleground that defines the history of man.

However, a closer consideration of history of the modern world would show us that the state has been just as destructive of society’s mediating institutions as it has been on the individual. The opportunities for self-expression and self-actualization have never been greater than today. It is our families, churches, and local organizations seem to be in decline and we can trace how the state has played a central role in facilitating that decline.

In the following essay, I hope to provide a brief (relatively speaking) history of rights-theory in American constitutional law and how it has been used to justify an expansion of federal power and a corresponding decline in the power of state and local governments and mediating institutions. There is much more that can be said and many more Supreme Court cases that could be discussed to provide a fuller treatment of this topic. However, the history recounted here should be sufficient to support the point CJay made in his article.

The American Revolution to the Civil War

The split between the colonies and the mother country ultimately occurred over a disagreement over the mutual rights and duties of each party within the empire. Parliament had established its sovereignty over the English Crown in the Glorious Revolution of 1688 and believed that this sovereignty naturally included the right of Parliament to legislate for all of its dominions. On the other hand, the colonists believed that no precedent existed to support Parliament’s legal right to impose taxes upon Englishmen without their consent. The American colonies were a domain of the British empire, but they were populated with Englishman and thus were entitled to representation in Parliament before any taxes may be imposed. Throughout English history, whenever the king was in need of revenue, he had to seek the consent of his nobles and knights to impose a tax. Parliament’s decision to raise revenue in this case arose to ease the burden of the debt that had been created from the Seven Years War with France (1756-1763).

This seemed to the colonists to be an unprincipled exercise of arbitrary power without basis in the common law. If Parliament set a precedent of arbitrarily imposing taxes whenever it was in need of funds, the colonists feared they would have no recourse against future Parliamentary dictates in the common law protections in which they took great pride as Englishmen. As it stood in 1776, the relationship between Parliament and colonists was undefined. Rather than being able to work out a settlement suitable to both parties going forward, the Declaration of Independence served to sever the relationship. From that point forward, the colonies were “Free and Independent States” and as such they had the right to power to do all “Acts and Things which Independent States may of right do.”[1]

For a time, these states chose to confederate for the purposes of maintaining their defense against any European interference. By 1787, some within the states believed the powers of the confederacy too weak to adequately preserve the harmony of the states and provide for their common defense. Figures such as Alexander Hamilton, James Madison, and George Washington advocated a stronger central government to remedy the deficiencies of the confederacy. In order to have any chance of gaining support from the populace, the previously undefined nature of the relationship which had existed between the colonies and Britain would have to be explicitly articulated in terms of the new relationship between the states and a new national government. Thus, a constitution was written stipulating the powers that the new government would have and the demands that it could make upon the sovereign states.

However, this was not deemed to be a sufficient protection against arbitrary rule for many who were skeptical of any new arrangement whereby power which the states had won from the British Parliament would be ceded back to a central authority. In addition to a constitution specifically enumerating the limited powers of the central government, those most suspicious of the project demanded a Bill of Rights which explicitly stated those things which the central government could not do. The new central government would be forbidden from infringing upon the common law liberties that the people of the states had enjoyed under Great Britain. For example, the central government would be forbidden from making arrests without particular warrants, the very issue that James Otis had railed against in 1761. The central government would be required to ensure the right of every citizen to a trial by jury in federal criminal cases. It would also be prevented from legislating any restraints upon the right to bear arms, a long-standing common law right of Englishmen.

Based on their recent experience, that great guide which figures like Edmund Burke and John Dickinson believed to be absolutely necessary in formulating law, additional protections against the central government’s authority were added to the list. These included prohibitions against the establishment of a national church, restraints upon the press, or interference with the people’s ability to assemble. In addition to those things explicitly stated in the first eight amendments which the central government could not do, two more amendments were added: one stating that the people had other rights that were not to be infringed which may not have been explicitly stated in the list (Ninth Amendment) and that any power that had not been granted to the central within the text of the Constitution belonged to the people and to the states (Tenth Amendment).

The relationship between the sovereign states and the new foreign government had been defined by reducing those areas which had been a source of conflict with Great Britain to a text, which would be the latest written contribution to the Americans’ inherited common law rights. Though written within the immediate context of the English common law and the natural law upon which the common law was built, it could not be used to claim powers for the central government beyond those enumerated within its text.

Incursions upon the stipulations of this agreement, however, would begin early in the life the American republic. Human beings, fallen as they are, will make errors in judgment and exercise power beyond their allotted constitutional authority. Thus, it is not surprising that George Washington might agree to establish a national bank or that John Adams and the Federalist-dominated Congress might try to suppress unfavorable political opinions through the Alien and Sedition Acts. What is surprising is that the Supreme Court would be allowed to assume to itself the sole authority to determine what the central government’s powers were. Chief Justice John Marshall, appointed by John Adams just prior to leaving presidential office in 1800, began to expand the central government’s power by assuming greater authority for the Supreme Court to weigh in on intra-state disputes and matters of state law.

Marshall’s first landmark decision was in the case of Marbury v. Madison. In that case, Marshall’s novel conclusion was that the federal courts had the power to review Congressional legislation or executive action and make the authoritative determination as to whether it was constitutional.[2] In McCulloch v. Maryland, another landmark decision in 1814, Marshall concluded, contrary to the record in the ratification debates in 1787, that the federal government’s powers extended beyond those explicitly enumerated within the Constitution and included any power which the government deemed a convenient means of carrying out those enumerated powers.[3]

Thus, in the case of McCulloch, even though the Constitution did not grant the federal government the power to create a national bank, Marshall believed the establishment of a national bank to be constitutional because it would be useful in carrying out the federal government’s enumerated tasks. Just like that, the powers which had been purposefully and painstakingly enumerated to define the rights and obligations between the free and independent states and the central government had been supplemented with unenumerated powers which would be upheld by the Supreme Court so long as they were deemed to be a rational means of accomplishing an enumerated goal.

Marshall revered Blackstone and was well versed in English common law. However, in applying common law in many of his decisions, he overstepped his constitutional authority.[4] Instead of using natural or common law principles to supply context or definition to unclear terms within the Constitution, Marshall would often use the common law to override the limited authority delegated to the central government by the states. By the mid-19thcentury, the central government’s violations of the constitutional arrangement created by the states generally occurred due to the Supreme Court’s tendency to supply a more expansive meaning to the Constitution’s enumerated powers.

However, John Marshall never appealed to natural rights or the Bill of Rights to justify the exercise of federal government power in the affairs of a state. On the contrary, Marshall, in a unanimous decision in Barron v. Baltimore, explicitly denied the power of the federal government to enforce the Bill of Rights against the states. If Congress had intended to provide the people with additional protections from the state governments, said Marshall, “they would have declared this purpose in plain and intelligible language.”[5] Marshall supported this claim by making reference to the historical context in which the Constitution had been ratified.

In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.[6]

Marshall rightly understood that the Bill of Rights was a product of historical circumstances, the aim of which was to limit the power of a central government, not to declare the universal application of abstract natural rights.

The power of the central government would be massively expanded during the Abraham Lincoln administration due to the natural effects of war as well as to Lincoln’s political rhetoric.  Wars always tend to have a ratchet effect upon the size and scope of government as central planners must divert economic resources from their natural course by force in order to fuel the war effort. The war against the Southern states would prove to be even more disastrous in that, not only would the central government be strengthened, but that power would be used to crush, not a foreign enemy, but the powers held by the member states of the constitutional union. However, beyond the ravages of war, it would be Lincoln’s mythological retelling of the American founding that would produce lasting effects within American jurisprudence.

According to Lincoln, free and independent states did not come together in 1787 to create a central government with limited and defined powers. With elegant prose and skillful rhetoric, Lincoln delivered a speech at the Gettysburg battlefield claiming that a new nation had been born in 1776, coming into being as if out of the state of nature. States were only the mere creations of the central government power in this view, existing only for the sake of convenience. The central government was not a product of human actions occurring in a particular historical context in order to address particular political deficiencies. It was for Lincoln a sacred institution, conceived, born, and now reborn for the purpose of ensuring that “government of the people, by the people, for the people, shall not perish from the earth.”[7] It would be this political rhetoric that would serve as a substitute for historical and constitutional arguments in future Supreme Court decisions.

Post-Civil War Amendments

Having defeated the seceding states, Congress acted to address the long-unresolved issue of slavery that had in part contributed to the tensions giving rise to the war. The Constitution, as ratified in 1787, had left slavery policy largely to the state governments. The Thirteenth Amendment to the Constitution would abolish the practice in all the states of the Union beginning in December of 1865. Going forward, enforcement of the prohibitions against slavery would be a matter of federal law just as foreign affairs and regulation of interstate commerce had been. In addition to outlawing the practice of slavery, Congress drafted, and the states ratified the Fourteenth Amendment, extending to former slaves the same fundamental rights enjoyed by citizens of the United States.

Section 1 of the Amendment states:

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.[8]

The rights of former slaves are spelled out in three clauses in the Amendment: the privileges and immunities, due process of law, and equal protection. Constitutional scholar Raoul Berger summarizes the Fourteenth Amendment rights this way:

Roughly speaking, the substantive rights were identified by the privileges or immunities clause; the equal protection clause was to bar legislative discrimination with respect to those rights; and the judicial machinery to secure them was to be supplied by nondiscriminatory due process of the several States.[9]

Under the Fourteenth Amendment, former slaves would enjoy the protections provided by the Bill of Rights against the central government as well as be guaranteed due process and equal protection under the law against their state governments. The Fourteenth Amendment did not determine what state laws should be or what criminal procedures would constitute due process. States would be free to vary in the development of their own common law traditions. However, if a state was to enact a law, that law must apply equally to everyone and enforcement must be uniform.[10] The Fourteenth Amendment then did not create any new substantive rights, nor did it transform constitutional or common law rights into absolute natural rights existing outside of the historic legal framework. On the contrary, the limited intent of the framers was merely to extend the constitutional and common law rights of America’s free men to all those who had previously been slaves.

The Incorporation Doctrine: Redefining the Bill of Rights

 While Edmund Burke saw history as a valuable source of wisdom in the form of accumulated human experience, modern jurists in the 20th century increasingly viewed history as vague and confusing if not just downright unenlightened. Thus, the eminent Supreme Court Justice Learned Hand could write in 1952 “history is only a feeble light, for the rubrics were meant to answer future problems unimagined and unimaginable.”[11] In other words, those who have gone before could not have imagined the problems that would plague the current generation, therefore, it was up to the courts to take an elastic reading of the text in order to supply the remedy the courts deemed most fitting. On the Fourteenth Amendment in particular, Hand wrote that the language was written “in such sweeping terms that history does not elucidate their contents.”[12]

On the contrary, if one were to examine the Congressional record, the intentions of the framers could not have been clearer. The words of the Fourteenth Amendment did not accumulate on the page at random, but were defined, debated, and ratified as the law of the land by real people within a particular historical context and legal tradition. The result of this modern approach to history was a growing divorce between the articulated rights protected by the Constitution and the natural and common law context from which they arose. The Due Process clause of the Fourteenth Amendment would be used to smuggle in a host of federally-enforced individual rights through the doctrine of Incorporation which would enable the court to obtain near total control over the states. “No innovation,” says historian David Lowenthal, “has had greater consequences for the federal structure of the nation, removing from the states whole areas of jurisdiction that formerly belonged to them alone.”[13]

Incorporating the Bill of Rights

In 1925, the Supreme Court first articulated the doctrine of Incorporation, which would serve to transform the original intent of the Bill of Rights as a list of protections from the federal government into the means by which the federal government would regulate the states in the name of individual human rights. Much like John Marshall, who had affirmed President Jefferson’s executive action in Marbury v. Madison while establishing the Court’s power of judicial review for the future, the Supreme Court in Gitlow upheld New York’s Criminal Anarchy Law while establishing a novel principle to the traditional interpretation of the Fourteenth Amendment, which would grant the Court discretion over state law making based on the Bill of Rights. “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.”[14]

In the name of the individual’s right to freedom of speech, the Supreme Court had subtly introduced an arbitrary judicial power into the American legal tradition. In subsequent decades, a series of cases would follow Gitlow incorporating every right and privilege of the First Amendment and applying them to the states. This practice would violate not only the intent of the framers of the Fourteenth Amendment, nor even just the common law tradition upon which the Constitution was based, but it would go on to violate the very principles of natural law as well. The right to the freedom of speech would swallow up every obstacle in its path to the point of defending the right to produce pornography, only drawing the line with obscenity, which the court was helpless to define.[15]

The court would not stop with the First Amendment, but would proceed to incorporate the criminal procedure rights protected in Amendments four through eight. For example, In Map v. Ohio, the court incorporated the right to freedom from unreasonable search and seizure and in Gideon v. Wainwright, the right to counsel.[16] Despite the Court’s claim that the intent of the Fourteenth Amendment was to extend the protections of the Bill of Rights to the states, they could not even apply that theory consistently, choosing only to selectively incorporate some clauses while excluding others. Thus, the right to a jury trial in civil cases or the right to protection against excessive fines were excluded from the incorporation doctrine.

Incorporating Phantom Rights

The Fourteenth Amendment would not only be used by the Court to completely alter the relationship between the states and the federal government in the twentieth century with respect to the Bill of Rights, but it would also be used to discover additional rights beyond those listed within the text. In Reynolds v. Sims, the Supreme Court ruled that the Fourteenth Amendment’s equal protection clause required that the electoral districts of any chamber of a state legislature must be apportioned by population.[17]

The Court could not cite a clause within the Bill of Rights guaranteeing apportionment of representation based upon population to support their argument. However, Chief Justice Warren, in the majority opinion, made his case by importing political rhetoric into the constitutional text in order to infuse it with new meaning. Warren appealed to the Declaration of Independence and the Gettysburg Address, arguing that since the Declaration stated that all men are created equal and since Lincoln said that government should be of the people, by the people, and for the people, that the Fourteenth Amendment’s equal protection clause meant that any chamber within a state legislature must be apportioned by population.

Rather than trying to discern what the law is, Warren begins with an abstract ideal to which every individual has a right, namely an equal weight given to each vote, and then on that basis proceeds to argue what the law should be. However, in the name of protecting democracy, the choice of the people, Warren substitutes his own judgment for that of the millions of decisions that had contributed to the formation of a state government and the apportioning of a legislature.

The following year the Supreme Court ruled on Griswold v. Connecticut, finding that the protections against the federal government in the Bill of Rights could be pieced together to form new rights that were also applicable to the states.[18] Justice William O. Douglass found a right to privacy emanating out of the penumbras of other constitutional protections which must be protected by striking down a Connecticut law prohibiting the use of birth control drugs. The Court justified its decision in Griswold in the name of guarding the sacredness of marriage and family. In reality, what was at issue in Griswold in the sale of birth control was the woman’s relationship with her doctor, not with her husband. Ironically, within six years of the Griswold decision, the federal government would begin a war on drugs like marijuana and cocaine, the use of which was no less of a privacy issue than the prescription of birth control.

The use of birth control would be held up as a fundamental right protected by the Fourteenth Amendment while federal agents would be empowered to raid homes in the middle of the night on the mere suspicion of possession of marijuana. One may be forgiven for suspecting that underneath the Court’s rights rhetoric is little more than arbitrary policy making.

The Court’s rhetoric about protecting the marriage relationship through the due process clause of the Fourteenth Amendment in Griswold was quickly exposed for the absurdity that it was. Seven years after Griswold, the Court found that prohibition of the sale of birth control to unmarried persons was also unconstitutional because it violated the Fourteenth Amendment’s equal protection clause.[19] Then, in 1973, the right to privacy that protected the use of birth control would be extended to the right to kill an infant during the first trimester in the womb.[20] While the Court affirmed the right to birth control in order to protect the sanctity of the natural relationship between husband and wife in Griswold, it treated the natural relationship between mother and child as a set of competing interests that must be balanced by the judgment of the Court: the life of the child versus the right of the mother to terminate the pregnancy.

By 1992, the Supreme Court would hand down a decision in Planned Parenthood v. Casey in which Justice Kennedy would boldly declare that at the heart of liberty was the right of every individual to define his own existence.[21] At this point, the Court had not only removed itself from any constraint by the constitution or the common law, but had rejected any regulating norm of the natural law as well. The right of the individual as a sovereign entity has consumed all external and objective bases for morality. By this definition of liberty, the door was wide open not only to infuse the constitutional language with a limitless definition of enforceable rights, but also to defy any limits existing within the natural law.

In 2003, the Supreme Court struck down a Texas law against the practice of homosexual sodomy in Lawrence v. Texas on the ground that it violated the equal protection clause of the Fourteenth Amendment.[22] Justice Kennedy, writing for the majority, would move the goal posts once again. In overruling Bowers v. Hardwick,[23] a 1986 decision upholding a Georgia law prohibiting the practice of sodomy, Justice Kennedy reframed the issue in a way that would reach his desired conclusion. Whereas the Court in Bowers addressed whether or not the practice of sodomy was a fundamental right protected by the Constitution – a question that would require looking to constitutional history, the common law, and the natural law tradition – Justice Kennedy began his argument based on the premise that “liberty presumes an autonomy of self.”[24]

Kennedy knew that no such right ever existed throughout Western civilization, so he focused instead upon the aim of early sodomy laws in order to argue that they were an innovation. Early sodomy laws, said Kennedy, were intended primarily to prohibit the practice among heterosexual couples, whereas the statutes in question were aimed at prohibiting homosexual practice. Rather than looking to the common law, Kennedy chose to interpret the relative novelty of statutes prohibiting homosexual sodomy as evidence that the founders recognized a right to engage in the practice. Furthermore, Kennedy argued, even if the framers did not actually recognize such a right in their own day, they would have if they would have lived in a more enlightened age like our own.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.[25]

In Justice Kennedy’s formulation, the text of the Constitution carries no meaning in and of itself, but can be infused with new meaning with each successive generation. The intent and historical context of a document are completely irrelevant to Justice Kennedy’s analysis. In the name of declaring an absolute individual right, he has arbitrarily nullified all of the little historical judgments and decisions that contributed to the system as it stood. Furthermore, by declaring homosexual sodomy to be a right, Justice Kennedy opened the door to the inevitability of demanding that that right be acknowledged and accepted by all.

Thus, as Scalia so aptly predicted in his dissent in Lawrence, the court would just over a decade later extend the rights language to redefining the institution of marriage.[26] Once again, the due process clause and equal protection clause of the Fourteenth Amendment were used in tandem first to find a right to engage in a practice privately and then to require equal acceptance within society for the open practice of that right. As Edmund Burke had said, “By having a right to everything, they want everything.” He well knew that once the language of rights is employed all of society’s institutions must give way.

Conservative Capitulation to Incorporation

Throughout the twentieth century, it has typically been the Left that has pushed for ever expanding rights and the expansion of federal power to protect those rights. However, those on the right have also been guilty of advancing the same faulty logic in support of rights important to them. In McDonald v. Chicago, a conservative majority on the court used the Fourteenth Amendment to strike down a city ordinance banning the possession of handguns by private citizens within the city of Chicago and its Oak Park suburb.[27] Whatever the deficiencies of common sense that lie behind a policy banning private ownership of handguns, Justice Samuel Alito’s majority opinion used the very same arbitrary means of altering the law as the liberal Warren Court had throughout the 1960’s and 70’s. Alito proved no more interested in the historical record and the intent of the framers of the Fourteenth Amendment than did the Court in Gitlow.

While acknowledging John Marshall Harlan’s concerns about federalism and even citing his many dissents to Court decisions that infringed upon state sovereignty, Alito summarily dismissed them saying, “unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondent’s argument must be rejected.”[28] Alito chose to make the recent incorporation precedents the fundamental authority rather than the original intent of the framers. In Alito’s view, since the Left-leaning members of the Court had been using the Fourteenth Amendment to further its own agenda, it would only be fair and consistent to incorporate rights valued by the Right as well. There might be political expediency to this method, but it is not one that could reasonably be based on original intent. Justice Clarence Thomas, in a concurring opinion avoided invoking the incorporation doctrine, making a more plausible argument that the Second Amendment is applicable to the states because it was fundamental to ordered liberty.[29]

While this argument looks to the common law to determine what people at the time of ratification believed to be their right, it still has the effect of inverting the original understanding of the constitutional arrangement. Rather than keeping the federal government out of the regulation of state militias or the personal ownership of firearms, which was the original intent, the Second Amendment would be used to justify the federal government’s power to regulate state and local gun laws.

Some modern conservative and Republican commentators have gone further in their rhetoric arguing that, more than just a constitutional or common law right, possession of firearms is a natural right.[30] While the right to defend oneself from bodily harm is a principle based in natural law, it does not follow that ownership of a firearm violates natural law any more than a restriction upon the ownership of anti-ballistic missiles would violate natural law. Freedom to own firearms to protect oneself from criminals or from the threat of a tyrannous government may be an eminently prudent policy and completely consistent with the principles of natural law.  However, that does not mean that it is a universal natural right. It is not bestowed upon the individual at birth by virtue of his humanity. On the contrary, it exists in those parts of the world where constitutions and laws have recognized and protected that right.

Modern conservatives have also been complicit in federal overreach by absolutizing the principle of religious liberty as a natural right. Contrary to popular American opinion, the natural law tradition never recognized the individual’s absolute right to believe whatever one wants, nor affirmed a government’s duty to keep the church completely separate from the state. On the contrary, religion was understood as an indispensable means of pursuing man’s happiness. The common law also existed within a context of an established church, first the Roman Catholic church, and then beginning in 1534, the Church of England.

The first settlers on the North American continent did not leave England in order to pursue religious freedom, but rather to reestablish religious discipline which they believed had been lax in England and in Holland. Throughout the colonial period of American history, established churches existed in most of the colonies and would continue to do so in some states long after the First Amendment was ratified. Thus, the First Amendment was never intended to guarantee that every individual would enjoy absolute religious freedom or that every government on the North American continent would be committed to secularism. Yet, in calling on the federal courts to enforce freedom of religion at the state and local level, modern conservatives have unwittingly reinforced the power of the federal courts to enforce freedom from religion at the state and local level.

________________

[1] THE DECLARATION OF INDEPENDENCE para. 32 (U.S. 1776).

[2] Marbury v. Madison, 5 U.S. 137 (1803).

[3] McCulloch v. Maryland, 17 U.S. 316, 413-414 (1819).

[4] See Fletcher v. Peck, 10 U.S. 87 (1810), in which Marshall argued on the basis of common law that state laws which violated property rights and the sanctity of contracts were unconstitutional.

[5] Barron v. Baltimore, 32 U.S. 243, 250 (1833).

[6] Id. (Emphasis mine).

[7] THE GETTYSBURG ADDRESS para. 3 (U.S. 1864).

[8] U.S. CONST. amend. XIV, § 1.

[9] RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 18 (Harvard Univ. Press 1977).

[10] See id. at 169-176.

[11] LEARNED HAND, THE SPIRIT OF LIBERTY 172-173 (Irving Dillard, ed., Knopf 1952) quoted in BERGER, supra at note 65, at 166.

[12] LEARNED HAND, THE BILL OF RIGHTS 30 (Harvard Univ. Press, 1962) quoted in BERGER, supra at note 65, at 195.

[13] DAVID LOWENTHAL, NO LIBERTY FOR LICENSE: THE FORGOTTEN LOGIC OF THE FIRST AMENDMENT 149 (Spence Publishing, Co. 1997).

[14] Gitlow v. New York, 268 U.S. 652, 666 (1925).

[15] See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Steward, J., concurring). “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it….”

[16] See Mapp v. Ohio, 367 U.S. 643 (1961) and Gideon v. Wainwright, 372 U.S. 335 (1963).

[17] Reynolds v. Sims, 377 U.S. 533 (1964).

[18] Griswold v. Connecticut, 381 U.S. 479 (1965).

[19] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[20] Roe v. Wade, 410 U.S. 113 (1973).

[21] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[22] Lawrence v. Texas, 539 U.S. 558 (2003).

[23] Bowers v. Hardwick 478 U.S. 186 (1986).

[24] Lawrence, at 562.

[25] Id. at 578-79.

[26] See Obergefell v. Hodges, 576 U.S. (2015).

[27] McDonald v. Chicago, 561 U.S. 742 (2010).

[28] Id. at 784.

[29] Id. at 806 (Thomas, J., concurring).

[30] Kevin D. Williamson, Our 21st Century Second Amendment, NATIONAL REVIEW (Oct. 8, 2017), http://www.nationalreview.com/article/452432/second-amendment-timeless-natural-right-protected. “The right to keep and bear arms…is not the king’s gift to give or withhold – the matter was settled by no less than God Himself” (emphasis mine).

About the author

Jared Lovell lives in Northeast Pennsylvania with his wife and three children. He actively works to corrupt the youth as a history and economics teacher at Memoria Press Online Academy and as an ESL teacher to Chinese students.

from the editor's blog