The Elephant in the Room

Absent from most discussion concerning the upcoming Presidential election is the likelihood of two vacancies on the Supreme Court during the next four years. This is truly “the elephant in the room” when we consider what those appointments could mean to the citizens of this country.

The current Supreme Court consists of four members who are considered “judicial fundamentalists” and five members of varying degrees of moderation it terms of judicial outlook. For the sake of discussion here, judicial fundamentalism (formerly called strict constructionism) is the belief that the Constitution should be read literally, allowing no room for interpretation, changing times, or intent of legislators.

All too often, the discussion of “activist judges” sends people into fits of ranting and raving. We have been hearing, since the Brown decision of the Warren Court, about how those crazy judges have handcuffed police, have unfairly put industry under control of environmental laws, to mention nothing about the entire abortion issue. If only we could remove activist judges we could forever end “legislating from the bench”.

But those issues are not the only thing in the sights of the judicial fundamentalists. The entire discussion goes WAY beyond certain specific policy disagreements. The entire panoply of rights as we have understood them is at risk.

A little background is needed here. Nowhere in the original Constitution were the rights of citizens mentioned. There were various reasons for this, ranging from the fact that all the states had bills of rights in their constitutions, to the fact that enumerating rights would lead people to believe that those were their only rights. Eventually, the first 10 Amendments were added to protect citizens from the federal government.

The popular misconception exists that the Bill of Rights protects citizens from all levels of government. States were certainly able to curtail the rights of citizens because the Bill of Rights was not originally designed to extend to the states. With the onset of the Civil War (War of Southern Insurrection, War of Northern Aggression, etc), the problem of what states could do to citizens became apparent. As a result, the Civil War Amendments were added to the Constitution. The 13th Amendment stated that anyone born in the United States was a citizen of the United States (and of the state wherein they reside), establishing the fact that we were all US citizens before we were state citizens. The 14th Amendment further stated that no state could deprive any citizen of life, liberty, or property without due process of law (the 15th Amendment covered voting rights, but does not apply in this discussion)

Now comes the interesting part. Since no state could unfairly limit the rights of citizens, and all people born in the US were granted citizenship, the logical extension was that the Bill of Rights should protect citizens from the actions of state governments. This is the concept referred to as the incorporation of the Bill of Rights. Nowhere does the Constitution actually SAY that the Bill of Rights applies to the states. It has just been understood as law since the late 1800s.

Let us return to this Presidential election and the appointment of one or two Justices. Four of the Justices do not believe in the concept of incorporation. Since it is not literally stated in the Constitution the concept should not be recognized. If we are unfortunate enough to have a fifth such Justice appointed, what will become of our rights?

The most common statement heard is that we will finally be able to overturn Roe v. Wade. But what is to prevent Utah, say, from declaring Mormanism the official religion of the state? What is to prevent a state like New York, say, from outlawing the possession of handguns? What is to prevent Georgia, say, from throwing people in jail for saying the Sonny is a schmuck? If the Bill of Rights does not protect us from the unjust ruling of ALL governments, of what use are ANY of our rights?

Whether you prefer Obama or McCain, do not ignore “the elephant in the room” Keep the faith