The Kelo Decision and the Fourteenth Amendment

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Does the Fourteenth Amendment incorporate the Bill of Rights? Is it a settled issue? Does it even matter? Is federalism dead? Is decentralization an illusive dream? These are questions that have once again been raised since the U.S. Supreme Court handed down its June 23, 2005, “Kelo decision.”

In this case, the city of New London, Connecticut, exercised the power of eminent domain to seize the private property of Susette Kelo and eight other petitioners who owned a total of fifteen properties in the Fort Trumbull area of the city. The property owners claimed that the forfeiture of their property violated the “takings” clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”) because their property was seized for an economic development scheme that was, according the Connecticut Supreme Court that ruled against the petitioners, “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.”

The fact that the property was seized by a nonprofit entity (the New London Development Corporation) authorized by the city to acquire property in the city’s name, by purchase or by eminent domain, did not enter into the question.

By a 5-4 vote, the Supreme Court ruled, in an opinion by Justice Stevens, that the city’s seizure of private property for private development qualified as “public use” even though the land was not going to be used by the public. The Court reasoned that since economic development is “a traditional and long accepted governmental function,” and the seizure of the land was for a “public purpose,” that the land seizure meets the “public use” requirement of the Fifth Amendment.

There are a number of things here that should clearly be obvious to libertarians who favor federalism, decentralization, private property, and limited government:

  • Private use is not public use.
  • Public purpose is not public use.
  • Economic development projects are not the business of any government — federal, state, or local.
  • The taking of private property, for any reason, is theft, whether it is taken by an agent of the state or the state itself.
  • The taking of private property, for any reason, is theft, whether it is taken for public or private use.
  • The Bill of Rights was meant to apply to the federal government, not to the states.
  • The Constitution nowhere grants to the federal government the right to overthrow state laws.
  • The Supreme Court had no jurisdiction to hear the case.

But some libertarian property rights advocates, like the Institute for Justice, which appealed the case to the U.S. Supreme Court and issued this statement after the Court’s decision, and the Cato Institute, which filed an amicus curiae brief with the Court, have argued that the sky is falling.

The statement issued by the Institute for Justice quotes from the dissenting opinion written by Justice Sandra Day O’Connor: “Any property may now be taken for the benefit of another private party.” I don’t know what is so shocking about this; if it was true then it would certainly be nothing new. The government has redistributed trillions of dollars from taxpayers for the benefit of other private parties since the beginning of Lyndon Johnson’s Great Society. The essence of government is theft. The state lives and breathes by lying, stealing, and killing.

Lew Rockwell recently asked the question: “Where’s the Kelo Calamity?” States and localities are now working to enact laws against Kelo-type takings. Within six weeks of the Kelo decision, the state of Alabama enacted legislation to curb eminent domain abuse. According to the Institute for Justice: “Alabama legislation prohibits cities and counties from using eminent domain for private development or for enhancing tax revenue.” The Institute also points out that Connecticut legislators have called for a moratorium on the use of eminent domain until their legislatures can revise property laws. Even the city of New London has agreed to allow Susette Kelo to stay in her property for now.

The Supreme Court’s reasoning was clearly flawed, but the correct decision was reached nevertheless. This is why, as Stephan Kinsella has masterfully shown, there is a larger issue here that is of greater concern. Libertarian opponents of the Kelo decision and the Supreme Court justices on both sides of this case are proceeding on the assumption that the Fifth Amendment’s eminent domain provisions apply to the states because they have been incorporated into the Fourteenth Amendment. Thus, in the second section of her dissenting opinion, Justice O’Connor, joined by Justices Rehnquist, Scalia, and Thomas, opens with the statement: “The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that u2018private property [shall not] be taken for public use, without just compensation.'”

Although the incorporation doctrine is commonly accepted now, this was not the purpose of the Fourteenth Amendment or the intention of those responsible for it. There are five things to be observed that bear this out.

Original Intent

Did the Congress that passed the Fourteenth Amendment (June 13, 1866) or the states that ratified it (July 9, 1868) intend that the Amendment incorporate, in whole or in part, the Bill of Rights? It is a telling indictment of the incorporation doctrine that nowhere in the Fourteenth Amendment does it say anything about incorporating any part of the Bill of Rights. The wisdom exercised by Chief Justice Marshall in Barron v. The Mayor and City Council of Baltimore (1833) should be followed here. In writing about the applicability of the Bill of Rights to the states, Marshall clearly explains why such was not the case:

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 constitutions 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.

It is inconceivable that if such a thing took place that such a significant doctrine as incorporation would be so veiled that it would take years before some Supreme Court judge discovered that there was such a thing.

The Blaine Amendment

We know from the opening line of the First Amendment (“Congress shall make no law”) that the Amendment applied only to the federal government. It is a fact of history that James Madison’s proposal in 1789 to extend to the states the freedom of speech and of the press was rejected by the Congress that gave us the Bill of Rights. When the Constitution refers to the states it clearly says so. For example, it says in Article I, sec. 9 of the Constitution that “no Bill of Attainder or ex post facto Law shall be passed.” That this only applies to the federal government is evident because in the next section it prohibits states from passing “any Bill of Attainder” or “ex post facto law.”

This view of the Constitution prevailed even after the addition of the Fourteenth Amendment to the Constitution. In 1875, which was several years after the adoption of the Fourteenth Amendment, an amendment to the Constitution was proposed in the House of Representatives by James G. Blaine (1830—1893), the speaker of the House from 1869 to 1875. Known as the Blaine Amendment, it reads:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The Blaine Amendment passed in the House but not in the Senate so it was never sent to the states for ratification. The purpose of the amendment — to keep Catholic schools from receiving state funds — is irrelevant. What is relevant is the opening phrase, which should be compared with the opening phrase of the First Amendment:

No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

The wording of Blaine Amendment shows that the Congress at the time did not consider the First Amendment to be incorporated into the Fourteenth Amendment. And if that bulwark of the Bill of Rights — the First Amendment — was not incorporated into Fourteenth Amendment, then neither was the Fifth Amendment or any of the others in the Bill of Rights. And such was the case until late into the nineteenth century.

Due Process

If the Fourteenth Amendment “incorporates” the Fifth Amendment, then why did the framers of the Amendment find it necessary to repeat verbatim the “due process” clause of the Fifth Amendment? Notice the italicized portions of the Fifth and Fourteenth Amendments that appear below:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

The “due process” clause in the Fourteenth Amendment must have the same basic meaning as it does in the Fifth Amendment. The meaning of the clause in the Fifth Amendment controls the meaning in the Fourteenth, and not the other way around. The “due process” clause is separate and conceptually distinct from the “takings” clause in the Fifth Amendment.

This is exactly what Justice Frankfurter emphasized in his concurring opinion in Adamson v. People of State of California (1947):

The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government. It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.

But, it is sometimes argued, the “due process” clause incorporates the Bill of Rights; it is merely a shorthand expression for the rights enumerated in the Bill of Rights. But given what Frankfurter says above, and given that each of the amendments that make up the Bill of Rights was adopted separately and independently, the “due process” clause in the Fifth Amendment must exclude the rights (really the protections and prohibitions) enumerated in the rest of the Bill of Rights. Therefore, there is no way that the “due process” clause in the Fourteenth Amendment could be said to incorporate the Bill of Rights and apply those amendments to the states.

Writing the opinion for the Court in the case of Bartkus v. Illinois (1959), Justice Frankfurter summarized the case against incorporating the “due process” clause:

We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.

In Adamson v. California, decided just a few months after the Bartkus case, Justice Frankfurter described the negative consequences of the incorporation doctrine:

To consider “due process of law” as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this Amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen. A construction which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights would, as has been noted, tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom. It would assume that no other abuses would reveal themselves in the course of time than those which had become manifest in 1791. Such a view not only disregards the historic meaning of “due process.” It leads inevitably to a warped construction of specific provisions of the Bill of Rights to bring within their scope conduct clearly condemned by due process but not easily fitting into the pigeon-holes of the specific provisions. It seems pretty late in the day to suggest that a phrase so laden with historic meaning should be given an improvised content consisting of some but not all of the provisions of the first eight Amendments, selected on an undefined basis, with improvisation of content for the provisions so selected.

He also gave the Court a history lesson:

Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court — a period of 70 years — the scope of that Amendment was passed upon by 43 judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States. Among these judges were not only those who would have to be included among the greatest in the history of the Court, but — it is especially relevant to note — they included those whose services in the cause of human rights and the spirit of freedom are the most conspicuous in our history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller, Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were alert in safeguarding and promoting the interests of liberty and human dignity through law. But they were also judges mindful of the relation of our federal system to a progressively democratic society and therefore duly regardful of the scope of authority that was left to the States even after the Civil War. . . .

The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments, was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution.

Justice Frankfurter concluded:

Those reading the English language with the meaning which it ordinarily conveys, those conversant with the political and legal history of the concept of due process, those sensitive to the relations of the States to the central government as well as the relation of some of the provisions of the Bill of Rights to the process of justice, would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight Amendments.

Alexander Hamilton a long time ago summarized the meaning of “due process” with the dictum that the words “have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of legislature.” This has been confirmed numerous times by the Supreme Court. The meaning of “due process” in its historical context was discussed in Davidson v. City of New Orleans (1877) by Justice Miller:

The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment, in the year 1866. The equivalent of the phrase “due process of law,” according to Lord Coke, is found in the words “law of the land,” in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the subject against the oppression of the crown. In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dictated by the jealousy of the States as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guarantees of personal rights of the same character. Among these are protection against prosecutions for crimes, unless sanctioned by a grand jury; against being twice tried for the same offence; against the accused being compelled, in a criminal case, to testify against himself; and against taking private property for public use without just compensation.

The conclusion reached in this case by the Court is extremely relevant to the Kelo decision:

It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.

It is unfortunate that Davidson v. City of New Orleans was not cited by the Supreme Court in its Kelo decision.

In Hurtado v. People of the State of California (1884), the meaning of “due process” was taken up again in yet another “takings” case:

Due process of law in the latter [the Fifth Amendment] refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the fourteenth amendment, by parity of reason, it refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

Could the members of Congress who passed the Fourteenth Amendment or the legislators in the states who ratified it have ever imagined that the Supreme Court would use the “due process” clause of the Fourteenth Amendment to declare a state’s law against sodomy unconstitutional (Lawrence v. Texas [2003])?

Privileges or Immunities

The Fourteenth Amendment cannot be separated from its place in history. Consider the time in which the Fourteenth Amendment was adopted. The Thirteenth Amendment abolished slavery (Lincoln’s Emancipation Proclamation did no such thing); the Fourteenth Amendment made the freed slaves citizens on an equal basis with existing citizens. In the infamous case, Dred Scott v. Sandford (1857), Chief Justice Taney related how Negroes

are not included, and were not intended to be included, under the word u2018citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

So, as Justice Miller, who wrote the opinion in the Slaughter-House Cases (1873), [three cases involving Louisiana butchers who challenged a state law granting a 25-year local monopoly to one New Orleans livestock slaughterhouse] explains, the Fourteenth Amendment was designed for “the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him” because “something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much.”

Notice the italicized words in the first sentence of the Fourteenth Amendment that are referenced in the second sentence:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

The Fourteenth Amendment was intended to confer a narrow, limited set of privileges.

But, it is sometimes argued, it is the “privileges or immunities” clause that incorporates the Bill of Rights; it is it, and not the “due process” clause that is merely a shorthand expression for the rights enumerated in the Bill of Rights. But as no reference is made to the Bill of Rights in the Fourteenth Amendment, and no mention of rights occurs in the text of the same, this is just as speculative as the similar claim for the “due process” clause.

When the phrase “privileges or immunities” was mentioned in the Fourteenth Amendment, it was not intended to be an isolated phrase the meaning of which to be decided by future Supreme Court justices. It is found in the Constitution, which, it should be noted, did not have any amendments when it was adopted but only contained a preamble and seven articles. The opening paragraph of the second section of Article IV of the Constitution reads as follows: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This clause was itself taken from Article IV of the Articles of Confederation:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

Here we have the general followed by the specific, thus limiting the “privileges and immunities.” And according to the principle set down by James Madison in the Federalist No. 41:

Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.

In the Slaughter-House Cases, the Supreme Court, in comparing Article Four of the Articles of Confederation and the Constitution, came to the conclusion that

there can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.

The “privileges or immunities” of the Fourteenth Amendment couldn’t possibly be a reference to the rights enumerated in the Bill of Rights for the simple reason that it had a history of contrary usage before the Fourteenth Amendment was ever thought of; the privileges and immunities preceded the Bill of Rights.

“What, then,” asked Justice Field in his dissenting opinion in the Slaughter-House Cases, “are the privileges and immunities which are secured against abridgment by State legislation?”

In Campbell v. Morris (1797), Justice Chase, writing for a Maryland court, said:

The court are of the opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State, in the same manner as the property of the citizens of the State is protected.

In Corfield v. Coryell (1823), Justice Washington, writing for a federal circuit court, explains further:

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expression of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate the mutual friendship and intercourse among the people of the different states of the Union.”

This was partially quoted by both sides in the Slaughter-House Cases. But Justice Washington also said in the same place:

But we cannot accede to the proposition which was insisted on by the counsel, that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens.

The import of the Fourteenth Amendment is clear, as Justice Field explained: “The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.”

Lyman Trumbull (1813—1896), the onetime justice of the Supreme Court of Illinois and chairman of the Senate Judiciary Committee at the time of the adoption of the Fourteenth Amendment, maintained that the “privileges or immunities” clause is

a repletion of a provision as it before existed. . . . The protection which the Government affords to American citizens under the Constitution as it was originally formed is precisely the protection it affords to American citizens under the Constitution as it now exists. The fourteenth amendment has not extended the rights and privileges of citizens one iota.

If the Fourteenth Amendment incorporates anything it incorporates the Civil Rights Act of 1866, which was passed over the veto of President Johnson. This was the view of virtually every Republican and Democrat in Congress who spoke in the debates on the Fourteenth Amendment or spoke on the matter to their constituents. Senator Trumbull, the draftsman of the bill, stated that the first section of the Fourteenth Amendment was “a reiteration of the rights as set forth in the Civil Rights Bill.” Those rights he elsewhere stated were “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property.”

In the dissenting opinion in the Slaughter-House Cases, Justice Field confirmed this in his two references to the Civil Rights Act:

This legislation [the Civil Rights Act] was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom.

In the first section of the Civil Rights Act Congress has given its interpretation to these terms [privileges and immunities], or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right “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.” That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.

The Fourteenth Amendment, which was intended to confer a narrow, limited set of privileges, has been expanded by the judiciary way beyond the intentions of even the most radical Republican during Reconstruction. The results of this are two-fold: the erosion of federalism and an increase in the power of the central government.

Selective Incorporation

If the Fifth Amendment has been incorporated then why do many states not have grand juries? The opening clause of the Fifth Amendment reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

The Supreme Court ruled back in 1884, in the case of Hurtado v. California, that the grand jury requirement doesn’t pertain to the states. To this day, states can use grand juries if they choose, but they don’t have to — without violating the Constitution. The doctrine of “selective incorporation,” which some will then argue, was hatched in the mind of Supreme Court judges — like the “right” to have an abortion (Roe v. Wade [1973]) or the “right” to receive welfare benefits (Goldberg v. Kelly [1970]).

But what about the other provisions of the Fifth Amendment?

In Palko v. State of Connecticut (1937), the Supreme Court ruled that the “double jeopardy” clause (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”) of the Fifth Amendment did not apply to prosecutions in state courts. But in Benton v. Maryland (1969), the Court overruled the Palko decision and maintained that “the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment.”

In Malloy v. Hogan (1964), the Supreme Court held that “the Fourteenth Amendment prohibits state infringement of the privilege against self-incrimination just as the Fifth Amendment prevents the Federal Government from denying the privilege.” This overruled the 1947 case of Adamson v. California where the Court affirmed that “protection against self-incrimination is not a privilege or immunity of national citizenship.”

This means that not only have certain amendments from the Bill of Rights been selectively incorporated by the Supreme Court, but certain parts of amendments have likewise been incorporated. This results in three problems. One, how does anyone know what the law will be from one day to the next? Which part of which amendment will be the next to be incorporated? Two, this is not the rule of law; this is government on a whim. The Constitution means what five members of the Supreme Court say it means — the Congress, the state legislatures, and the people be damned. And three, the Supreme Court that has the power to incorporate has the same power to unincorporate.

The incorporation doctrine is a creation of the U.S. Supreme Court, not the Congress that drafted the Fourteenth Amendment. The Court underwent a gradual change of opinion on the matter, as can be seen by comparing two cases that relate to the First Amendment and two cases that relate to the Fifth Amendment.

The First Amendment Cases

In the case of Prudential Insurance Co. of America v. Cheek (1922), Justice Pitney stated: “The Constitution of the United States imposes upon the states no obligation to confer upon those within their jurisdiction either the right of free speech or the right of silence. . . . But, as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about u2018freedom of speech’ or u2018freedom of silence.'” But in the case of Gitlow v. People of the State of New York (1925), the Court ruled that a New York law violated the free speech clause of the first amendment because that part of the first amendment was incorporated into the fourteenth amendment:

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.

The Gitlow case even expressly overruled the Prudential Insurance case: “We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.”

The Fifth Amendment Cases

In the case of Fallbrook Irrigation Dist. v. Bradley (1896), Justice Peckham stated: “The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided.” But in the case of Chicago, Burlington and Quincy Railroad Co. v. City of Chicago (1897), the Court considered its jurisdiction to

re-examine the final judgment of the supreme court of Illinois, and to certain rulings of the state court, which, it is alleged, were in disregard of that part of the fourteenth amendment declaring that no state shall deprive any person of his property without due process of law, or deny the equal protection of the laws to any person within its jurisdiction.

The opinion of the Court, written by Justice Harland, concluded that

a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.

The result of this opinion is that: “compensation for private property taken for public use is an essential element of due process of law as ordained by the fourteenth amendment.”

This is the case that started the Supreme Court down the slippery slope of incorporation, as explained by Justice Brennan in his opinion in the Malloy v. Hogan (1964) decision:

The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases in this Court since the Amendment’s adoption in 1868. Although many Justices have deemed the Amendment to incorporate all eight of the Amendments, the view which has thus far prevailed dates from the decision in 1897 in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, which held that the Due Process Clause requires the States to pay just compensation for private property taken for public use.

Although the wholesale incorporation of the Fifth Amendment was clearly not the intention of the justices in the Chicago, B. & Q. Railroad case, it is now cited as such by the Supreme Court in “takings” cases.

Writing for the majority in Lucas v. South Carolina Costal Council (1992), Justice Scalia remarks that “the practices of the States prior to incorporation of the Takings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) which, as JUSTICE BLACKMUN acknowledges, occasionally included outright physical appropriation of land without compensation.”

And more recently, in the Kelo case, where the Court held that “the city’s proposed disposition of petitioners’ property qualifies as a u2018public use’ within the meaning of the Takings Clause,” this statement appears at the beginning of the case: “The question presented is whether the city’s proposed disposition of this property qualifies as a u2018public use’ within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.” Then there is a footnote given that reads: “u2018[N]or shall private property be taken for public use, without just compensation.’ U. S. Const., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897).”

To lay the groundwork for the Supreme Court’s misapplication to the states of the Fifth Amendment’s privilege against self-incrimination in the Malloy v. Hogan case, Justice Brennan quoted an incidental remark in Twining v. State of New Jersey (1908) [a case that the Malloy case overthrew, along with the aforementioned Adamson v. California]:

It was on the authority of that decision [Chicago, B. & Q. Railroad] that the Court said in 1908 in Twining v. New Jersey, supra, that “it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”

However, in his dissenting opinion, Justice Harlan quotes the same remark from the Twining case but this time also gives the next sentence that follows immediately after: “If this is so, it is not because those rights are enumerated in the first eight Amendment, but because they are of such a nature that they are included in the conception of due process of law.”

Justice Harland recognized the true intent of the majority in the Malloy case:

I can only read the Court’s opinion as accepting in fact what it rejects in theory: the application to the States, via the Fourteenth Amendment, of the forms of federal criminal procedure embodied within the first eight Amendments to the Constitution. While it is true that the Court deals today with only one aspect of state criminal procedure, and rejects the wholesale “incorporation” of such federal constitutional requirements, the logical gap between the Court’s premises and its novel constitutional conclusion can, I submit, be bridged only by the additional premise that the Due Process Clause of the Fourteenth Amendment is a shorthand directive to this Court to pick and choose among the provisions of the first eight Amendments and apply those chosen, freighted with their entire accompanying body of federal doctrine, to law enforcement in the States.

Harland believed that “the reasoning behind the Court’s decision carries extremely mischievous, if not dangerous, consequences for our federal system in the realm of criminal law enforcement.” He accepted the proposition of the majority that “continuing re-examination of the constitutional conception of Fourteenth Amendment u2018due process’ of law is required, and that development of the community’s sense of justice may in time lead to expansion of the protection which due process affords,” but he did not understand

how this process of re-examination, which must refer always to the guiding standard of due process of law, including, of course, reference to the particular guarantees of the Bill of Rights, can be short-circuited by the simple device of incorporating into due process, without critical examination, the whole body of law which surrounds a specific prohibition directed against the Federal Government. The consequence of such an approach to due process as it pertains to the States is inevitably disregard of all relevant differences which may exist between state and federal criminal law and its enforcement. The ultimate result is compelled uniformity, which is inconsistent with the purpose of our federal system and which is achieved either by encroachment on the States’ sovereign powers or by dilution in federal law enforcement of the specific protections found in the Bill of Rights.

The breakdown of federalism that has resulted from all the litigation associated with the Fourteenth Amendment was anticipated by an opponent of that amendment in the Pennsylvania State House that debated its ratification: “The regulation of the civil relations of each State is placed under the control of the Federal Government, the States to be used simply as instruments to execute its will, and nearly their entire civil and criminal jurisprudence placed under the control of Congress.”

So, just as the anti-federalists were right, so were the opponents of the Fourteenth Amendment.

The Kelo Decision

If the reasoning of the Supreme Court’s in the Kelo case was flawed, but the correct decision was reached nevertheless, then what should have been the proper course of action for the Court to take? Back in the days before the Fourteenth Amendment, when the Constitution was followed by the Supreme Court much more closely than it is today, a Fifth Amendment “takings” case was brought before the Court. In Barron v. Baltimore, the unanimous Court ruled, without even hearing the arguments from the City of Baltimore:

We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed.

The same thing should have happened in the Kelo case.

The Constitution

The Constitution has utterly failed and failed utterly to do what it was intended to do: act as a check on the federal government. The Constitution has been a dead letter since the (so-called) Civil War. In the words of another Justice Marshall — Thurgood Marshall (1908—1993) — who delivered a speech at the annual seminar of the San Francisco Patent and Trademark Law Association on May 6, 1987, on the occasion of the bicentennial of the U.S. Constitution:

While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.

The federal system of dual sovereignty or divided authority was all but destroyed by Lincoln’s War. In his Constitutional Government in the United States, Woodrow Wilson maintained that Lincoln’s War to Preserve the Union established the principle that “the federal government is, through its courts, the final judge of its own powers.”

The seeds of this were, of course, sown long before the Civil War. Through its power of judicial review (which is not mentioned in the Constitution), first exercised over two hundred years ago in Marbury v. Madison (1803), the federal judiciary has become, in the words of Thomas Jefferson, the “ultimate arbiter,” and worse — its own final authority. Jefferson did not think too highly of the results of the Marbury case. Here is Jefferson, who was intimately connected with the case since Madison was his Secretary of State:

This practice of Judge Marshall, of traveling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable. I recollect another instance, and the more particularly, perhaps, because it in some measure bore on myself. Among the midnight appointments of Mr. Adams, were commissions to some federal justices of the peace for Alexandria. These were signed and sealed by him, but not delivered. I found them on the table of the department of State, on my entrance into office, and forbade their delivery. Marbury, named in one of them, applied to the Supreme Court for a mandamus to the Secretary of State (Mr. Madison) to deliver the commission intended for him. The court determined at once, that being an original process, they had no cognizance of it; and there the question before them was ended. But the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case, to wit: that they should command the delivery. The object was clearly to instruct any other court having the jurisdiction, what they should do if Marbury should apply to them. Beside the impropriety of this gratuitous interference, could anything exceed the perversion of law? . . . Yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice.

Jefferson further said about the judiciary:

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.

The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

But it’s not just the judiciary. Congress has been without restraint since Justice Marshall ruled in the case of McCulloch v. Maryland (1819) that even though “among the enumerated powers, we do not find that of establishing a bank or creating a corporation,” yet “the constitution of the United States has not left the right of congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added, that of making u2018all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'”

Our Constitution has been reduced to a series of abused clauses: the “general welfare” clause, the “commerce clause,” the “necessary and proper” clause, the “due process” clause, and the “privileges or immunities” clause.

In vain does one look to the federal government to check its own power or protect its citizens’ rights. The federal government is ever seeking to increase its power and is the greatest violator of its citizens’ rights. If the federal government can’t be counted on to follow its own, admittedly imperfect, Constitution, there is no stopping its hegemony.

Federalism and decentralization are two effective weapons in the war against the federal leviathan. Any Supreme Court decision that increases either one is a welcome sight.

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