In the aftermath of the recent Supreme Court decisions, many in the liberty movement have come to a vexing realization – the fact that most people have no problem with edicts, as long as they find favor with the edict in question.

Edicts, which are governmental mandates by official proclamation, are much more reminiscent of a powerful monarchy than a limited republic. Instead of relying on an executive to bring about the will of the legislature, Americans have come to accept commandments brought about by a small group of people at the United States Supreme Court. This is the exact system of governance that Americans bring upon themselves when they allow five unelected political appointees to place binding mandates upon 320 million people. Their deference is their doom.

In Iran, that type of power is wielded by the mullahs. In Saudi Arabia, a royal family exercises ultimate authority. In Thailand, the army recently obtained this type of control. Do Americans really want to allow a small group of well-connected lawyers to hold this type of power in the United States?

When these types of judicial pronouncements achieve widespread acceptance, we are living in an oligarchy.

It has been a gradual, long road that has brought us to this point. Of course, when the Federalist advocates of the Constitution explained the federal court system in the ratification conventions, they maintained that the judiciary could never impose such a commanding rule over the people.

When George Mason expressed skepticism concerning this topic in Virginia, a young John Marshall assured him that “the State Courts will not lose the jurisdiction of the causes they now decide.”[1] As the same apprehensions emerged in North Carolina, future Supreme Court Justice James Iredell insisted that federal courts and state courts could coexist by respecting separate jurisdictions.

In modern times, most of America’s jurisprudential misapplication is due to a calculated bastardization of the 14th Amendment. Originally intending to affirm due process and citizenship to the post-Civil War freedmen, the amendment has become the impetus for the federal government to meddle with localized government and given it an excuse to police the states.

The amendment was not interpreted otherwise for over 55 years after its ratification, when the federal government believed it necessary to justify the growth of federal power in the 1920s and 1930s. At this point, the courts started to rule that the 14th Amendment incorporated the Bill of Rights restrictions to the state governments.

Even by 1922, the federal courts maintained that the 14th Amendment did not have the effect of the incorporation doctrine. This was validated in the case of Prudential Insurance Company of America v. Cheek, which concerned New York’s ability to restrict freedom of speech. In this case, the Supreme Court opinion stated:

“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 ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”[2]

Concerning incorporation, historian Raoul Berger wrote that ”no such purpose was entertained” by the ratification of the 14th Amendment in his famous published work concerning the subject, Government by Judiciary.[3]

Ever since, this misapplication serves as a catalyst for the federal judiciary to exploit and abuse the states. It has given federal judges an ability to interject their own opinions into municipalities, provides the federal government a pretext for policing the entities that built it, and allows the federal courts to redefine rights in a way that it was never meant to. It has made the federal judiciary into a nationalist, untouchable branch of government.

During the 1970s, the Warren Court came very close to finding a mandatory minimum income rate based upon 14th Amendment grounds. Some legal scholars hoped that the Supreme Court “might very well have entrenched the American welfare state in the morass of modern constitutional law.”[4] By this transformation, the federal courts have gone far beyond the confines of the Bill of Rights to craft a plethora of costly privileges undreamed of by the founders.[5]

When Nebraska decided to change its school curriculum to restrict foreign languages studies, the court stepped in and ruled in Meyer v. Nebraska that such restrictions violated the Due Process Clause of the 14th Amendment. Apparently, by 1923 all Americans miraculously had the “constitutional right” to learn German, and the power to force states to adopt particular methods of instruction or curriculum was suddenly a federal duty.

Now, the federal courts issue edicts that oblige local governments to remove religious symbols, redefine state institutions, reinvent local criminal codes, and force the states to expand their welfare systems. They effectively work to deconstruct the originally cherished characteristic of federalism. This form of repulsive judicial activism has defined the federal judiciary for the last 78 years.

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Most obviously, the 14th Amendment did not overturn or override the implicit principle, or the explicit verbiage codified in the Tenth Amendment, that all powers that the states did not delegate to the federal government were reserved to the states or the people. In 1791, Thomas Jefferson called this feature the “foundation” of the federal Constitution. At some point between then and now, the principle has been abandoned.

If federal judges actually protected individual rights, and conceived of liberty the same way the liberty movement does, this revision may be acceptable. The clear and irrefutable fact is that they do not. If the federal justices fail to see how the NSA surveillance program or federal firearm restrictions are complete violations of constitutionally recognized rights, how can we trust them to sort such things out at the state level?

Those who endorse edicts when they deem them to be expedient should rethink their position. If the federal courts can rule simply by decree, their actions will ultimately serve as precedents for the farther consolidation of power. At some point, those who find favor with the edicts of today will be oppressed by those that come tomorrow.


[1] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume III, Edited by Jonathan Elliot (Washington: Taylor & Maury, 1861), 503.
[2] Prudential Ins. Co v. Cheek, 259 US 543 (1922).
[3] Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition (Indianapolis: Liberty Fund, 1997), 171.
[4] See David Bernstein, “Equal Protection for Economic Liberty: Is the Court Read?” Cato Institute Policy Analysis No. 181, 2.
[5] Raoul Berger, Government by Judiciary, 186.

Dave Benner
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