Meet Bob, the owner and editor of a struggling newspaper.
Circulation and interest in his publication remains pretty stable, but advertising revenue dropped precipitously over the last several months. He’s on the verge of shutting down the presses when a very wealthy businessman comes and offers to underwrite the entire venture. He woos Bob with a passionate speech about his commitment to news. He tells Bob he values hard hitting reporting and talks about “speaking truth to power.” He even expresses a willingness to take a loss for the sake of keeping journalism alive in their town.
The businessman comes to the table with just one condition: he gets to make the final decision on all content.
Understandably, Bob feels somewhat reluctant initially. But after a series of discussions, it becomes clear that the two men share similar philosophies and visions. Mostly, the fact that they seemingly share the same passion for journalism and a deep commitment to news sells Bob on the partnership.
Things go well for several months. Then, one of Bob’s reporters pulls the lid off some local government corruption. It seems the county clerk skimmed several hundred dollars by falsifying expense reports. The young journalist extraordinaire writes an airtight story, and Bob gets pretty excited about outing a little local malfeasance.
But Bob’s new partner puts the kibosh on the story.
“That’s not news,” he emphatically declares.
“What? That’s the epitome of news. We’re serving the public by exposing corruption. That’s the purpose of journalism,” Bob implores, pleading his case.
“Well, I disagree, and that settles the matter,” he replies, walking out of the office.
And it is settled, because Bob gave him the final say.
Liberty Enforcement Squad
Today, most Americans look at the federal government as a “liberty enforcement squad.”
It all began some 90 years ago when the Supreme Court invented a new understanding of the 14th Amendment out of thin air, ruling that it “bound” the states to the bill of rights.
As late as 1922, the Court held that the Constitution “imposed upon the states no obligation to confer upon those within their jurisdiction…the right of free speech.” Then magically, in the 1925 case Gitlow v. New York, the Supreme Court “assumed that freedom of speech and the press – which are protected by the First Amendment from abridgement by Congress – are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the 14th Amendment from impairment by the states…” [Emphasis added]
Voila, incorporation was born.
The original meaning of the Fourteenth Amendment did no such thing. (More about that HERE.) Never-the-less, the selective incorporation of the Bill of Rights onto the states now stands as one of the pillars of American jurisprudence. As a result, we have a federal government that serves as a liberty enforcement squad, smacking down states that violate the fundamental rights protected by the Bill of Rights.
Despite the fact that incorporation obliterates the original structure of our constitutional system and rests on a bastardized understanding of the 14th Amendment, many liberty-minded Americans embrace the principle. Why? Because they believe that the feds should protect their rights from infringement by out of control state governments.
Reject incorporation and prepare to feel the wrath of many Americans, even those who generally advocate for “limited government.”
“I don’t think I can agree with this. Because if I did, then that would mean that states could pass laws that violate our natural rights. And no government anywhere should be allowed to do that,” a critic of our assertion that the feds shouldn’t enforce the Bill of Rights at the state level wrote.
Agreed! No government should violate natural rights.
But by making the federal government the liberty enforcement squad, these well-intentioned Americans centralize the system and unwittingly create a problem not unlike the one our imaginary editor Bob faced.
It Is What We Say It Is!
Most proponents of incorporation focus all of their attention on the need to stop ANY government from infringing on rights. The idea that the Bill of Rights protects liberty at not only the federal level, but also the state and local level, appeals to these folks because it provides a power source for them to tap into to advance their cause.
The battle over the right to keep and bear arms provides a poignant illustration. When states like Maryland, New York or California pass laws restricting firearms ownership, well-meaning Americans immediately scream “Second Amendment!” and often run to federal courts to stop state governments from restricting their natural right to self-defense. Ironically, supporters of the right to keep and bear arms generally oppose big government and centralized solutions out of D.C. But in their desperation, they turn toward the Potomac and plead with DC’vers, “Please protect our rights!”
These people clearly have their hearts in the right place, but by turning the federal government into a “liberty enforcement squad,” they actually put liberty in a very tenuous position.
Consider this: the power to “protect” rights also entails the power to define them.
Like supporters of incorporation, our intrepid editor Bob thought he’d found salvation in a powerful figure. The infusion of cash would save his paper and continue the important mission of journalism in his town. But in his eagerness, he failed to count the cost. And when the benevolent power turned against him, defining journalism in a way incompatible with his own ideals, Bob found himself in a position of powerlessness.
He was hosed.
Liberty lovers put themselves in a similar position when they count on the federal government to “protect” their rights at the state level through the Bill of Rights. By turning to federal courts, they ultimately empower five federal employees to define their rights. And when the federal courts ultimately decide the issue, that decision doesn’t just bind one county or state, it extends to all 350 million-plus Americans.
IF the judges happen to issue the “right” opinion, things move along nicely. But how often do federal judges actually rule in a way that preserves individual liberty?
Take the recent decision handed down by the U.S. Supreme Court in Maryland v. King. According to the federal liberty enforcement squad, the police have the right to take your DNA when they arrest you. No warrant necessary.
The case involved a man arrested in Maryland on an assault charge. When the cops booked him into the Wicomico County jail, they took his DNA and ultimately matched it to a rape case.
The ruling was a staggering blow to the Fourth Amendment. After all, if my own hereditary material containing the key to my distinct and fundamental physical characteristics doesn’t warrant security from arbitrary seizure, what exactly does?
The Maryland constitution protects citizens from unreasonable searches and seizures.
Art. 26. That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.
This raises an important question: since police within Maryland’s jurisdiction violated King’s rights, and the Maryland constitution defines and restricts government power in Maryland (in the same way the U.S. Constitution delegates and restricts federal power) why wasn’t this case handled in Maryland state courts?
Granted, a Maryland court might have come up with the same awful ruling. But that ruling would have only applied to Marylanders. By turning to the federal government and insisting it enforce the Bill of Rights on the state, this drastically narrowed interpretation of the protections against searches and seizures now apply not only to the citizens of the Old Line State, but to every single man, woman and child in America.
By turning the federal government into a liberty enforcement squad, we’ve empowered the federal government to define all of our rights. The recent Maryland case stands as a single example among hundreds. Federal courts have restricted the free exercise of religion, degraded property rights, allowed for expansive police powers and even concocted new “rights” out of thin air, infringing on other well-established natural rights. And again, every time the federal courts act, their “authority” binds every single American.
Those who continually defend incorporation because, for example, they think the Second Amendment will protect their gun rights at the state level play a fool’s game. Do you really want to depend on five black-robed federal employees to not only protect, but define, your right to keep and bear arms? Or your right to free speech? Or to protect you from intrusive police powers?
Decentralization of power stands as a foundational principle in American political thought. Good-intentioned liberty lovers fall into a trap when they turn to the Bill of Rights to protect fundamental rights at the state and local levels. They abandon this most basic principle and centralize authority. As a result, they place an inordinate amount of power in the hands of a few.
History reveals their folly. Power monopolies never benefit individuals in the long run.
Certainly, state governments can, and do, trample the rights of their citizens – just like the federal government does. Protecting our inalienable rights takes constant effort, as Thomas Jefferson understood.
“The price of freedom is eternal vigilance.”
But we must fight our battles in the proper arena. The U.S. Constitution and the Bill of Rights operate on the federal government. State constitutions and their declarations of rights operate on state governments. When state governments violate our rights, we should not depend on the feds to protect us. Doing so simply empowers the beast. Fight those battles at the state level. If the state constitution doesn’t offer sufficient protection, work to get it amended. But don’t hand power to the federal government it was never intended to exercise. Don’t turn the feds into a liberty enforcement squad.
DON’T BE BOB.
Even if you win the occasional small victory for your pet issue, you shred the fabric of the American system.
We simply cannot claim the federal government has limits and then empower it to define our most basic rights. Incorporation turns Washington D.C. into an unlimited, sovereign font of power. Decentralization comes with its own risks, but consolidating power into a single institution poses a far greater threat to our liberty.