Mr. Wilton Strickland puts forth a compelling argument why conservatives (and by extension liberals) should, as much as possible, avoid federal courthouses as a means of addressing state and local laws that they view unfavorably. He believes that by using the federal government to "win a battle," we are "losing the war" against the rapid expansion of federal power at the expense of state and local self governance. While I am not in complete agreement with Mr. Strickland, he does provide some important points that are worth considering.
Staying Away From The Federal Courthouse
Tue, Jun 22, 2010
Featured Articles, Political Philosophy, State Sovereignty, Wilton Strickland
by Wilton Strickland
In a previous article, I offered suggestions for the states to achieve independence by weaning themselves from the federal government and the quasi-religious sentiment now surrounding it. One ingredient I neglected to mention is rather important because it lies squarely within our power as private citizens; at the same time, it is difficult to swallow because it challenges firmly held notions about the Bill of Rights.
Specifically, we must stop running to the federal courthouse whenever a state or local law displeases us. “Making a federal case” out of every nuisance has become a national pastime rivaling baseball, and no corner of America will achieve independence or liberty until we learn to solve our problems within our communities rather than seek federal intervention from without.
My proposition may sound ludicrous because almost everyone now considers it the role of the federal courts to enforce the Bill of Rights against any local, state, or federal antagonist who would dare violate it. On the left side of the spectrum, we find litigants eager to disrupt any attempt by state or local authorities to uphold community standards of decorum; to prevent abortion; to acknowledge God in the public sphere; or to preserve our ability to hire, fire, sell, lease, or otherwise associate as we choose.
On the right side of the spectrum, we also find litigants who make avid use of federal courts, but for different reasons. This sort of litigation is geared toward disrupting attempts by state or local authorities to license professions; to regulate economic affairs; to take or burden private property; to remove religious symbols from public life; or to impose restrictions on gun ownership.
State and local authorities thus find themselves buffeted on all sides by litigation that gives federal courts an obscene amount of power to decide each community’s destiny, which goes a long way toward explaining why “community spirit” has become a quaint notion indeed. In the process, the courts have pummeled the Bill of Rights into an unrecognizable carcass.
A history lesson is in order here. Rightly suspecting that the newly hatched federal government would roam beyond its enumerated powers, the “anti-federalists” insisted on adding the Bill of Rights as a redundant safety device to emphasize certain areas where the federal government could never tread. This was an “exclamation point” to drive home the concept of limited federal power — it was not meant to restrain the states, who were not the object of everyone’s anxiety, and who retained vast power to govern as they saw fit.
Even the acclaimed John Marshall recognized this when ruling in Barron v. Baltimore that the Bill of Rights restrains only the federal government. The Constitution imposes only a handful of restrictions on the states. For example, they cannot exercise the narrow powers delegated to the federal government; impose ex post facto punishment; enact bills of attainder; or impair contracts.
Accordingly, states acted in a manner unthinkable today, such as by supporting churches and restricting broad areas of speech. Any state that abused this power would harm only itself, since the people could vote with their feet and diminish the tax base. Interstate competition thus served as a far better check against governmental abuse than a monolithic, all-powerful central government possibly could.
Today the Bill of Rights functions in exactly the opposite manner as intended: to restrain the states and empower the federal government. This began during the twentieth century (of course), when the Supreme Court “incorporated” the Bill of Rights against the states even though their broad powers do not accommodate it. Since the Bill of Rights is a mirror image of enumerated federal power, applying such rights to the states resembles pounding a square peg into a round hole.
As the Supreme Court kept pounding, the contours of the Bill of Rights grew fuzzy, generating “exceptions” and “penumbras” that appear nowhere in the Constitution’s text. States steadily found themselves able to do less while the federal government reaped the benefit of these exceptions and began doing more.
To illustrate, consider the First Amendment’s charge that “Congress shall make no law . . . abridging the freedom of speech[.]” Nothing could be clearer than this. The federal government may not curtail any speech. The state governments, on the other hand, may restrain speech if their citizens choose to, and the federal courts have no proper say in the matter. This simple, workable distinction has been eradicated.
Instead, the First Amendment now supposedly handcuffs the states from regulating everything from schoolhouses, flag burning, “exotic dancing,” and even the states’ own courts of law. To allow some police powers to survive, the federal courts poked holes in the First Amendment for regulating defamation, “fighting words,” and a few other areas that the courts in their infinite wisdom find appropriate. Apart from the indignity of having federal courts ration powers that belong to the states, these unwritten exceptions to the First Amendment are now available to the federal government, which regulates speech in violation of its founding charter.
How did the federal courts get away with this? The answer lies in the Fourteenth Amendment, which was (debatably) enacted after the Civil War and says in pertinent part as follows:
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.
Unlike the few other prohibitions that the Constitution imposes on the states, this one is vague, which has allowed federal courts to claim the titanic ability to strike down virtually any state law with which they disagree. But it did not have to be this way. In the 1872 Slaughterhouse Cases, the Supreme Court had its first chance to abolish an unpopular state law under the Fourteenth Amendment but rightly refused to do so.
The court explained that the Amendment had a narrow goal: to protect the ex-slaves — African-Americans — and ensure they were not deprived of their civil rights. The Amendment was not designed for every Tom, Dick, and Harry disgruntled about his state’s legislation. Since the dispute before the court involved a mere licensing law rather than an attack on ex-slaves, the court exercised a restraint now extinct and made a prescient warning:
Was it the purpose of the fourteenth amendment . . . to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? . . . [S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . [T]hese consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; . . . the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.
This warning was deadly accurate, as the modern court relishes its role as “perpetual censor” and has inverted the constitutional order. Under the Constitution of the Founders, the states decided which powers the federal government would have; today, it is the federal government that decides which powers the state governments will have.
“Conservatives” and “libertarians” who run to federal court and beg for this treatment are their own worst enemies. Their quest for a federal veto on local matters such as gun control or property takings does just as much harm as the American Civil Liberties Union’s quest to eradicate religion from public view or to establish abortion as a secular sacrament.
Liberty cannot survive without independence, and a temporary victory in federal court today blazes a path to a thousand defeats tomorrow. As the Founders understood, any power that might be abused will be abused, so it must be avoided. Although the states abuse their power as well, such abuses have limited geographic scope and allow us to escape as a last resort. There is no escape from federal power, unless one wishes to expatriate or renounce citizenship (which the federal government is making more difficult every day).
If you confront an unjust law in your state, advocate its repeal. If that doesn’t work, vote for candidates who will one day repeal it. Failing that, bring a challenge in state court based on the state constitution – the U.S. Supreme Court cannot interfere unless the case involves the U.S. Constitution or federal law. And as mentioned before, leave the state if you are ultimately unsatisfied with it; do not spoil it for the others who wish to remain there.