On Monday, the U.S. Supreme Court struck down a Montana law banning campaign spending by corporations in the state. The 100-year-old Montana statute provided that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” In 2010, the U.S. Supreme Court struck down a similar federal law in Citizens United v. Federal Election Commission. In a 5-4 decision, the Court ruled Citizens United also applies to the states.
“The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”
The Montana law dates back to 1912 when “copper kings” and mining barons controlled politics in the Big Sky State. In essence, the Montana Supreme Court justified the state law, even in light of Citizen, arguing it addressed an extreme situation, overriding the First Amendment protections considered in the SCOTUS ruling. The state court said the history of corruption and other factors unique to Montana justified the ban.
But the arguments presented by both the Montana Court and the SCOTUS miss a more fundamental issue.
The Citizens United ruling addressed a federal law. Whether one agrees with its reasoning or not, U.S. Supreme Court was well within its power to strike it down based on First Amendment considerations. But the Court overstepped its legitimate constitutional authority in the Montana ruling. If one holds to the original meaning of the Constitution, the federal government does not have the power to meddle in state campaign finance laws.
The Citizens United ruling hinges on First Amendment protections of free speech. The Court held corporations and unions enjoy a right to donate an unlimited amount of money to political campaigns. But a simple reading of the First Amendment makes it clear it doesn’t apply to the states.
“Congress shall make no law…abridging the freedom of speech…”
It’s difficult to conceive how a judge can make the jump from “Congress shall make no law,” to “the Montana legislature shall make no law.”
But the Supreme Court did just that, pulling the notion that the First Amendment applies to the state governments out of its collective rear-end in the 1925 case Gitlow v. New York. The SCOTUS didn’t base its argument on any precedent; it simply asserted that the 14th Amendment bound the states to the federal conception of free speech and free press.
“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.”
Poof – with an assumption and a stroke of a pen, seven judges created an entirely new constitutional principle out of thin air. It made up a completely novel reading of the 14th Amendment some 50 years after its ratification. The Court never even justified its logic. It simply “assumed” for its “present purposes.”
Nice.
So, the recent U.S. Supreme Court decision rests under a veil of legitimacy if one simply takes into account SCOTUS rulings over the last 90 years. But the entire argument rests on a faulty premise and crumbles into dust in light of the original meaning of the constitution and the 14th Amendment.
In his dissent, Justice Stephen Breyer stumbled on a fundamental truth and the reason framers created a federal government with specific limited powers, leaving authority over “all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State,” to the states and the people. Decisions from a centralized authority often ignore local experience and concerns.
“Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Given the history and political landscape in Montana, that court concluded that the State had a compelling interest in limiting independent expenditures by corporations,” Breyer wrote.
Bow down Montana! The central planners know better than you!
Ironically, 100 years of progressive jurisprudence and the extension of federal authority into state affairs bit liberals in the butt this time around. And conservatives abandoned their “states’ rights” rhetoric to cheer a ruling based on nearly a century of judicial activism usurping legitimate state power, as senior fellow in Governance Studies at the Brookings Institution E.J. Dionne points out in a Washington Post op-ed.
“Will everyone please finally admit that conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the Court have become complete and utter hypocrites on the matter of what states can and can’t do.”
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The most recent U.S. Supreme Court ruling vividly illustrates the convoluted mess created by accepting Supreme Court opinion as the law of the land, and Court precedent as unassailable gospel, instead of holding to the intended meaning of the Constitution every issue, every time, no exceptions, no excuses. We should always evaluate the legitimacy of a federal act in light of the original Constitution, not solely on the opinion of some long dead lawyers. The hesitancy to question past SCOTUS decisions makes its discretion and not the Constitution the fundamental law of the land.
“We the people” have allowed the Court to turn the United States into an oligarchy run by nine politically connected lawyers. The question is, when will “we the people” and the states insist on reclaiming their rightful power?
But the word SUPREME in this country is so authoritative so it must be the most superior correct? The Gods of all life and all states have spoken so please stop breathing today for the authorities of all mankind have defined this made up law.
Since supreme decision only comes from supreme thinkers in the universe it only make sense that this supreme choice be the ONE! When the deciding of the universe give choice making to a few will poor choice be present. Most of this is done because so few recognize the decision makers of the universe, poor you.
I have personally decided to RULE them out of existence for their lack of values, integrity an actions that refuse to support LIFE as the deciding thus lessoning any reasonable choice making skills they THINK they have. For I have decided upon my own authority of my own direction to be independent of the ignorant ones who have simply decided to make up their own authority over all others for which they hold no value.
It is not the words that hold this value, it is the acts of men and women to each other in support of us as LIFE. I am the total authority of my choices independent of all others and is the act of equal to all other life no matter what they decide upon, get the heck over it.
Washington seems to take what few limits it sees upon itself(The discretion of Federal employees) and impose them upon our States. They seem to think that if any power is to be allowed to anyone it must be allowed to them or noone. As if political power, in their mind, flows from them.
Ask a liberal (that may not be fair) if a state can deny freedom of the press. Oh no. Why – 14th amendment/incorporation doctrine. Ask then if a state or city can take away gun rights. Well, uhhh, ohhh, huh? By their logic wouldn’t the 2nd amendment also be incorporated?
Excellent article. Very informative.
The history of the 14th Amendment shows that one of the purposes of the Amendment was to make the Bill of Rights applicable against the states. The Supreme Court in Barron v. Baltimore had previously declined to apply the Bill of Rights to the states. The main drafters and sponsors of the 14th Amendment (John Bingham, Jacob Howard, Thaddeus Stevens) stated that they wanted to reverse the result of Barron v. Baltimore and to make the states subject to the 14th Amendment.
Accordingly, Bingham specifically drafted the language of the 14th Amendment based on what the Barron case had said would be necessary in order to enforce the Bill of Rights against the states. Howard explained that as things then stood, the guarantees of the bill of rights “simply stand . . . in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them . . . The great object of the first section of [the 14th] amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” So, it is clear from the history that the 14th Amendment was intended to make the Bill of Rights applicable to the states.
The Supreme Court’s recent decision applying the First Amendment to the states is exactly in line with the intent of the drafters of the 14th Amendment. The Constitution was applied in harmony with its intended meaning.
@Alex Hamilton No, Bingham brought an amendment that would have applied against the states first, and it was not passed from the Senate. So then he redrafted it to the present language, which passed. THEN, he went around saying that it was applicable, and a liberal court went along with the charade. Incorporation Doctrine is an invention of an activist court.
@WarrenNorred That simply is not true. In fact, the truth is quite the opposite. Rep. Bingham’s original draft of the 14th Amendment did not explicitly restrict the states; rather, it affirmatively granted power to Congress to protect the rights of citizens. Bingham later revised the language of the proposed Amendment to explicitly restrict the states. He added a phrase that had not been in the earlier draft: “No state shall . . .” He did this because he wanted to use the language that the Barron case had said should be used to make the Bill of Rights applicable as a restriction on the states. Thus, the second draft strengthened the applicability of the Bill of Rights to the States. This second draft was the one that was passed by the House. The Senate approved Bingham’s language. The Senate amended the proposal to add a clause defining citizenship, but that had no bearing on Bingham’s language restricting the states. Rep. Bingham, Sen. Howard, Rep. Stevens, and others made speeches contemporaneously with the passage of the Amendment explaining that one purpose of the Amendment was to make the Bill of Rights applicable against the states. The historical record shows that the 14th Amendment was intended to make the Bill of Rights applicable against the states.
@Alex Hamilton John Bingham had officially clarified that 14A did not take away state powers both before and after the ratification of that amendment.
“The adoption of the proposed amendment will take from the States no rights that belong to the States.” –John Bingham, Appendix to the Congressional Globe, 1866. http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=131 (last paragraph of first column)
“No right reserved by the Constitution to the States should be impaired…” –John Bingham, Appendix to the Congressional Globe, 1871. http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=100/llcg100.db&recNum=438 (first or second paragraph of first column, depending on how you count paragraphs.)
Note that Bingham’s latter statement is found on the next page after the page where Bingham had mentioned concerns about the Barron case.
And the reason why many people today believe that the 14A applied the BoR in its entirety to the states, including the BoR’s prohibitions on certain powers of Congress, is probably the following. Constitution-ignoring FDR was determined to establish a majority of likewise-minded justices on the USSC. He succeeded in doing so by the early 1940s, activist justices ignoring Bingham’s clarification of the scope of Sec. 1 of 14A when deciding cases.
@BJohnson Bingham argued that the 14th Amendment was not taking any rights from the states because he believed the Privileges and Immunities Clause of Article IV of the Constitution already guaranteed that the states could not infringe the Bill of Rights. Bingham therefore believed that the states were already subject to the Bill of Rights.
The problem, in Bingham’s view, was that the Constitution lacked an enforcement mechanism allowing the Bill of Rights to be enforced against the states. The 14th Amendment was intended to supply that enforcement mechanism. The enactment of the 14th Amendment, in Bingham’s view, allowed the Bill of Rights to be enforced against the states, vindicating the rights that had always existed, in his view. Bingham therefore believed that the 14th Amendment did not take away any rights from the states. Rather, it provided for the enforcement of rights that already existed. That’s why Bingham said the 14th Amendment did not take away any right of the states.
@Alex Hamilton @BJohnson Now, THAT is baloney. There were numerous states that censored the news, controlled who had guns, and routinely did things that were not permitted to the feds under the Bill of Rights. There is no recorded evidence I’ve ever seen to indicate that anyone thought that it was an enforceability issue. You are making that up out of whole cloth.
@WarrenNorred In the debates in Congress on the 14th Amendment, advocates of the 14th Amendment stated repeatedly that they believed the states were already required to obey the terms of the Bill of Rights, but that the federal government had no enforcement power to compel the states to comply. The 14th Amendment was designed to remedy that problem. For example, John Bingham said “‘The question is simply whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of oaths enjoined upon them by their Constitution? … Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.” He also said “Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. . . . And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial, that these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States….” There are quite a few similar statements.
@Alex Hamilton Your analysis of the 14th is the typical analysis used by those who wish to expand centralized power. Bingham may or may not have wanted to make the 14th applicable to the states. But it was not sold to the states that way and they did not ratify it with that understanding. (Not to mention that one could argue the ratification wasn’t even legitimate since the southern states ratified with a proverbial gun to their head – as a condition for full admittance back into the Union.
Bingham was all over the place. On the one hand, he did indeed argue for an enforcement of the bill of rights. On the other hand, he argued vehemently against the phrase “civil rights and immunities” in the 1866 Civil Rights Act, saying it could be interpreted to strip rights from the states. He was afraid the bill would empower to federal government to force his state of Ohio to enfranchise blacks.
As much as northern states wanted to protect the basic rights of freed slaves (the first part of the 14th guaranteed them citizenship) they certainly did not want to give up their own sovereignty and powers. Bingham himself conceded this point.
“The care of the property, liberty and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.”
Historian Wallace Mendelson, a 14th Amendment scholar, noted, “Bingham is one who used ringing rhetoric as a substitute for rational analysis.”
But really Bingham’s thoughts and desires don’t govern the meaning of the 14th. He may well have wanted to incorporate the Bill of Rights through the 14th. That doesn’t mean that’s what the 14th actually did. That is the same argument some proponents of strong national government use – saying because Hamilton, Madison and others proposed and pushed for strong national powers in the Philadelphia Convention, that the Constitution grants strong national powers. It does not. The ratification conventions and how the amendment was “sold” dictate the meaning.
So the question becomes what are privileges and immunities, what is the meaning of due process and what is equal protection. As I said, it was understood that the Civil Rights Act of 1866 governed the meaning of the 14th.
“It is but incorporating in the Constitution the principle of the civil rights bill which has lately become a law.” – Martin Thayer (R-Penn) Sen. Lyman Trumbull (Ill.) guided the 14th through the Senate. In a speech in Chicago as the amendment was being debated, he “clearly and unhesitatingly declared Sec . 1 of the Amendment to ‘be a reiteration of the rights as set forth in the Civil Rights Bill.’” Indiana Sen. Lane reaffirmed Trumbull’s views as did several other Congressmen addressing their states. West Virginia Rep. George Latham said, “The civil rights bill, which is now a law…covers exactly the same ground as the amendment.” Howard Jay Graham, an advocate of an abolitionist reading of the amendment said, “Virtually every speech in the debates on the amendment – Republican and Democrat alike – said or agreed that the amendment was designed to embody or incorporate the Civil Rights Act.”
Bingham’s desires not-withstanding, the purpose of the 14th was to ensure the protection of a specific set of rights to new black citizens – not an incorporation of the Bill of Rights. The northern states weren’t about to give up their sovereignty to the federal government. Had that been the understanding, they would not have ratified it. In fact, the argument was that the Civil Rights Act wouldn’t even have any affect in the North. (Rewind to Bingham’s fear of giving blacks the vote in Ohio.) In fact, the Slaughter-House ruling got it right.
@MikeMaharrey-TenthAmendment Bingham objected to the Civil Rights Act of 1866 because he believed it gave the federal government powers that would go well beyond enforcing the Bill of Rights and would allow the federal government to enforce a broad range of civil rights and common law rights. This went beyond the bounds of Bingham’s view of federalism. In his view, the 14th Amendment was needed to allow the federal government to enforce the Bill of Rights. He did not believe the federal government should go well beyond that and get into the business of enforcing all civil rights. Therefore he objected to the Civil Rights Act. He believed the 14th Amendment went far enough by allowing Congress to enforce the Bill of Rights against the states.
Your defense of the Slaughter-House Cases reminds me of the old saying “Fools rush in where angels fear to tread.” Certainly an angel wouldn’t dare to defend the Slaughter-House Cases. . . .
@Alex Hamilton None of this matters because the 14th amendment wasn’t Constitutionally ratified.
http://www.barefootsworld.net/14uncon.html
@nodakimpala @Alex Hamilton Totally agree nodakimpala.
@vapatriotstea http://t.co/yWqyNHHQ