Some, such as Glenn Beck, passionately yearn for a return to a strict constructionist interpretation of our Constitution, seeing that as a panacea for most of our problems.
Yet if the purpose of government is to secure God-given inalienable rights, as the Declaration of Independence maintains, then the U.S. Constitution fell short because it allowed violation of those rights as long as it was undertaken by a state government. The Constitution, as originally written, allowed states to deprive individuals of life, liberty and property.
Because our Bill of Rights was written to limit only the national government, states and cities were free to disregard it. Chief Justice John Marshall made this clear in Barron v. Baltimore (1833), where he wrote for a unanimous court in the last case he participated in. This immensely important and little understood case has never been overruled. Specifically, Barron held that only the national government was forbidden to take private property without just compensation. States and cities could.
Over three decades ago, while visiting BYU Law School, I heard Rex Lee ( founding dean of BYU Law School and Solicitor General of the U.S.) say that Missouri's 1838 "Extermination Order" (which ordered Mormons " must be treated as enemies and must be exterminated or driven from the state.") did not violate the First Amendment's command: "Congress Shall make no law....prohibiting the free exercise" (of a religion). Indeed, Congress had made no law against Mormons; it was Missouri which had. According to the conservative, strict constructionist, original intent reading, when Congress was prohibited from making a law, "Congress" meant only "Congress," and did not also mean "states," as the Mormons had hoped it might. The First Amendment was not liberally construed then.
Further examples illustrate that states' rights were used to deprive people of basic rights. In 1869 a very corrupt government in Louisiana granted a monopoly of the slaughterhouse business to a single corporation, thus preventing over 1,000 persons and firms from continuing in that business. In 1873 the Supreme Court upheld Louisiana. A unanimous Supreme Court declared in U.S. v. Cruikshank (1876): "The second amendment ... has no other effect than to restrict the powers of the national government." So states could have forbidden gun ownership without violating the Second Amendment if they wanted to.
In the early-20th century, progressives and liberals used the Fourteenth Amendment to expand individual liberty at the expense of states rights. Many of the freedoms we enjoy today are the result of progressives interpreting the Fourteenth Amendment. In 1949 Justice Hugo Black extensively researched the Fourteenth Amendment and concluded that in effect it reversed the Barron v. Baltimore. He maintained states had to respect the rights enumerated in the Bill of Rights.
His theory was called "total incorporation" because it assumed the entire Bill of Rights was now incorporated into the Fourteenth Amendment. Most justices rejected total incorporation and relied on earlier precedents that respected states rights.
But because Black's philosophy gave rights to communists, poor people and suspected criminals, the right-wing John Birch Society's four-volume, 2,600-page Biographical Dictionary of the Left said that Black was "the best friend that Communists ever had on the bench. Black's leftwing views have always been years ahead of the Congress, the executives, and his judicial associates...."
The recent gun case, McDonald v. Chicago, showed how ahead Black really was. The Court moved another step closer to total incorporation by using the Fourteen Amendment to limit states' and municipalities' abilities to restrict gun ownership. In doing so the court completely disregarded its own precedents and created a new individual right which did not exist in the 18th 19th or 20th centuries. Furthermore, unelected activist judges invalidated the work of elected officials. The late Justice Black would be proud of this decision.
Why aren't self-described "Constitutionalists" outraged by this decision? Could it be that they care less about principles than about which group receives new rights? Or could it be that, even though some of the them claim they would give their life for the Constitution, they are unaware of its history?
The great economist Joan Robinson encouraged people to study economics to avoid being fooled by economists. The selectivity that some Constitutionalists use suggests that we study the Constitution to avoid being fooled by Constitutionalists.
To return to the pre-20th century interpretation of the Constitution, as some propose, would mean giving up enormous individual liberties.
Rick Jones is an instructor of economics at Weber State University.
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