Judicial Review and Conservative Legislation

One of the persistent questions that comes to my mind is why conservatives don’t complain about judicial review when laws they don’t like are struck down. For example, Chicago’s gun control laws.

In that case, simple reference to the 2nd Amendment’s protection of gun rights is not a sufficient argument, because the 2nd Amendment, like the rest of the Bill of Rights, was written to apply to the federal government. So to apply it to the states required that it be incorporated through the 14th Amendment’s Due Process Clause, a process of which conservatives have never been too fond,* as it requires substantial judicial creativity in the interpretive process, as the 14th has absolutely no language that even substantially hints that it is meant to apply the Bill of Rights to the states. Justices sometimes base their decisions on what framers of an amendment could have done, on the assumption that they obviously knew how to do it. In reference to the 14th Amendment, we could argue that the authors clearly could have known how to write an amendment that said, “Amendments 1 through 9 are hereby applied to the states.”**

So why haven’t we heard conservatives complaining about judicial activism in reference to that case? It was a 5-4 decision, too, meaning a bare majority of the court struck down the considered judgment of the people’s representative without any clear constitutional basis for doing so. Where is the uproar about a judicial aristocracy? Where is the concern for threats to self-governance?

It’s not good enough for conservatives to say, “The Court interpreted all these other rights, why not this one, too?” That just suggests a lack of interpretive integrity. If you defend a broad reading of the 14th Amendment when it comes to protecting gun rights against the state, on what general principles do you object to broad readings that protect other rights?

Don’t get me wrong. I support the McDonald decision. But then, like Hugo Black, i believe in total incorporation (while admitting the dubious 14th Amendment basis for such a policy).*** For me, supporting the outcome, and the Court’s reasoning, in McDonald is non-problematic, and is completely consistent with my belief in a broad application of the principles of liberty expressed in the Constitution. I don’t think originalists and those worried about judicial aristocracy have such a straightforward explanation for their positions.


*I am not sure how well known and understood this process is. In a nutshell, the Supreme Court has interpreted the 14th Amendment as applying portions of the Bill of Rights to the states, but only done so on a clause-by-clause (not even amendment-by-amendment) basis. Only Justice Hugo Black ever called for total incorporation of the whole Bill of Rights. Even today not quite all of the Bill of of Rights has been incorporated, although nearly so. The Third Amendment, for example, has not (at least by the Supreme Court, although the 2nd Circuit has ruled so), the Fifth Amendment right to indictment by a grand jury has not, and the Seventh Amendment right to a jury trial in civil cases has not. Wikipedia’s article on incorporation claims that the Eight Amendment right against excessive bails or fines has not been incorporated, either, which doesn’t sound right to me. But Wikipedia tends toward accuracy on that kind of factual information, and I’m not going to do the legal research to double-check it at this time.

**Yes, the 10th is part of the Bill of Rights. But I don’t think it makes much sense to talk about incorporating it to apply to the states.

***Perhaps Justice Thomas’s “privileges and immunities” approach is better. It’s certainly refreshing to see a Justice try to resurrect that language so that it actually means something. But the Court read it out of the Constitution so quickly that we have almost a century and a half of silence on what it would actually mean, so I find it hard to evaluate the strength of Thomas’s argument. I would have to devote a considerable amount of study to the subject before being qualified to really comment on it.


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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12 Responses to Judicial Review and Conservative Legislation

  1. I think I agree with your view that most/all of the bill of rights should be applied to the states. But I do think it is easier to think of incorporating the 2nd and the 5th–or at least the parts of the 5th that refer to “life, liberty, and property” and “due process of law”–and not, for example, the first, because the first refers specifically to “Congress” being forbidden to enact certain laws. The 2nd amendment, on the other hand, is stated much more broadly: “….the right to keep and bear arms shall not be abridged.” Some of the language of the 5th is reproduced in the 14th, and I can therefore see how that might be incorporated as well.

    All this is only to say I can understand, even if I don’t agree with, the argument for partial incorporation of the Bill of Rights. Of course, your point was about what “conservatives” do, and I cannot speak for them, many of whom, I assume, object to the way the 5th has been incorporated against the states (e.g., by Miranda).

  2. Tim Kowal says:

    I’m not sure there are any particularly damning charges against conservatives here. Should conservatives/originalists oppose wholesale the Incorporation Doctrine? I don’t think that necessarily follows. Even we agree that certain rights must be protected. And the Constitution is a nice place to find them.

    As for which of the rights in the Constitution to incorporate, I’ve always quite liked the standard expressed in Palko v. State of Connecticut, 302 U.S. 319, 325 (1937): “particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.”

    I take the Second Amendment as falling squarely within that standard. Likewise the freedom of speech and free exercise of religion, among others. The Establishment Clause, almost certainly not—at least, not as the Founders understood.

    Minor point: The repetition of the due process clause in the Fourteenth Amendment is evidence against an intent to incorporate. If the ratifiers meant to incorporate, why would it bother re-enacting the same language?

  3. Mr. Kowal,

    Likewise the freedom of speech and free exercise of religion, among others. The Establishment Clause, almost certainly not—at least, not as the Founders understood.

    I’m not sure I see why the establishment clause ought not be incorporated if the other two would, at least if you’re using the “Founders,” by which it’s unclear whether you mean the “Founders” of the 1789 constitution or the “Founders” of the 14th amendment. If you’re using the concept of “ordered liberty,” and not “as the Founders understood [incorporation?],” I can at least see–even though I do not endorse–how one can consistently support incorporating some components of the Bill of Rights, but not all.

    Still, I think Mr. Hanley’s point, if I understand him correctly, is that it is characteristic of conservatives to be hypocrites when they object to what they call judicial activism. When it results in policy preferences they endorse, then they do not criticize it, but when it results in policy preferences to which they object, they cry “judicial activism.”

    I personally think that what passes for American “Conservatism” is actually a coalition built around ensuring the implementation and continuation of certain policy preferences. Nothing wrong with building a coalition–I think this is generally what “Liberals” do, and I tend to support Liberal policy preferences–but it is important to realize (and I think Mr. Hanley realizes this) that coalitions like this have a hard time being intellectually consistent. Of course, the elephant in this blog are the recent threads about gay marriage. I have read them and don’t wish to enter the debate because I’m too poorly equipped and I generally agree with Mr. Hanley’s arguments, with some minor quibbles that don’t affect the substance of what he has written here.

    Minor point: The repetition of the due process clause in the Fourteenth Amendment is evidence against an intent to incorporate. If the ratifiers meant to incorporate, why would it bother re-enacting the same language?

    I don’t fully understand your point here. I could see why using language from the 5th amendment might be a way of limiting incorporation of all amendments except the 5th, but why would it not mean that the “Founders” (of the 14th amendment) meant to incorporate at least that portion of the 5th that contained the due process clause? (Or perhaps I’m misrepresenting/misunderstanding your point?)

  4. Tim Kowal says:

    As James mentioned, the Bill of Rights in 1791 only applied to the Federal Government. At that time, it was widely understood that the states may and did pass laws respecting establishments of religion. The Establishment Clause was ratified to prevent the Federal Government from imposing a national establishment of religion.

    As to particular rights that conservatives support, at least with respect to the example raised—the Second Amendment’s right to bear arms—I disagree that conservatives exhibit anything like the spirit of “judicial activism” as is typically seen on the Left.

    Finally, responding to the Fifth Amendment, imagine you were packing for a trip. If you believed you already had a toothbrush packed away somewhere, you wouldn’t pack another one. Yet, by incorporating the Fifth Amendment, the Court has suggested that the ratifiers packed two Due Process clauses into the Constitution—an absurdity. Obviously, those who ratified the Fourteenth Amendment did not believe that they were incorporating the entire Bill of Rights as against the states. If they had, they would have packed the second toothbrush.

  5. Re: your first paragraph. You are probably right that the Founders intended the Bill of Rights, or at least the first 8, only to apply to the federal government, at least that was the understanding expressed in Barron v. Mayor of Baltimore. But the Founders also provided that the Constitution could be amended almost without limitation. So whatever “the Founders” believed could be amended and those who argue for incorporation believe that the 14th amendment enabled applying the Bill of Rights to the states.

    Re: your second paragraph. Maybe liberals and the left are indeed more enthusiastic than conservatives and the right about supporting “judicial activism.” Maybe not. But the question isn’t about whether conservatives are more hypocritical or less hypocritical. As I see it, it’s about why they appear to be hypocritical when it comes to judicial activism and whether there is a way for conservatives to be intellectually consistent in their apparent support for distinguishing some rights as incorporable and some rights as not.

    Re: I think I disagree with you (in part because I am not an originalist but also even on originalist grounds, as I understand originalism), but at least I understand your position better. I suppose “privileges, immunities, and toothbrushes” would have been too wordy!

  6. James Hanley says:

    The right to own guns implicit in the concept of ordered liberty? Absolute nonsense, as Western European states show us quite clearly.

    And the whole “some of these rights are implicit in the concept of ordered liberty” approach hardly gets you away from the absolute necessity of relying on the Supreme Court to make the determination, your great bugaboo.

  7. Matty says:

    The right to own guns implicit in the concept of ordered liberty? Absolute nonsense, as Western European states show us quite clearly.

    And what makes you think Western Europe is ordered?

  8. Tim Kowal says:

    Certainly, it is not a perfect standard. In my view, the standard ought to be more like “necessary” or “fundamental” to the concept of ordered liberty. This would more closely line up with my view that the interpretive power of the Court be bound to ensuring the survival of our system of government, and not to a particular abstract concept of justice or liberty that individual judges might adhere to.

    Kozinski’s dissent in Silveira v. Lockyer is a powerful bit of constitutional reasoning in line with this view.

  9. James Hanley says:

    To my mind, Mr. Kowal’s version of ordered liberty seems long on order and short on liberty. Only the most crucial rights appear to be protected from the tyranny of the majority.

    Personally I prefer a little more liberty and a few more shackles on the mob.

  10. Blondy says:

    It’s great to read something that’s both enjoyable and provides pragmaisdtc solutions.

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