Removing the Sword of the Federal Judiciary

The Bill of Rights exists to protect the people and the states from an overreaching federal government. Since the 1920s, the federal courts have turned the Bill of Rights into a weapon to use against the people and the states.  December 15—Bill of Rights Day—should remind Americans that the first 10 amendments were intended to restrict rather than augment federal power.

In our upside-down world today, we associate the Bill of Rights with landmark Supreme Court cases restricting state action. Modern Americans express shock when learning that the Bill of Rights was intended to apply only to the federal government.

As the preamble to the Bill of Rights announces, “further declaratory and restrictive clauses” were adopted because the state ratification conventions wanted some security to “prevent misconstruction and abuse of” powers delegated to the general government of the federation. The people of the states were satisfied with their own bills of rights and restrictions on state power appearing in the various state constitutions. What they feared was untrammeled federal power.

Even the Supreme Court in 1833 recognized the limited applicability of the federal Bill of Rights. Writing for the Court in Barron v. Baltimore (1833), Chief Justice Marshall observed that during the late 1780s, “fears were extensively entertained that” certain powers “might be exercised in a manner dangerous to liberty.”  He continued: “These amendments demanded security against the apprehended encroachments of the General Government—not against those of the local governments.”

So what happened?  In the 1920s, the Court began to describe certain provisions of the Bill of Rights as “fundamental.” Consequently, the Court began striking down state laws on grounds that they violated protections of the 14th Amendment’s Due Process Clause. For hundreds of years, Anglo-American jurists defined due process as requiring the government to resort to the courts and use established and nondiscriminatory procedures before it deprived a person of life, liberty, or property. Due process was not applied to legislative acts.

The Supreme Court rejected the established definition of due process in favor of a new meaning that sanctioned judicial activism. The Court went from neutral umpire to crusader as it strictly reviewed state statutes. The Court’s due process revolution was not limited to liberties secured in the first 10 amendments, but also to unenumerated rights discovered by the justices.

Matters that generations had considered within the reserved powers of the states suddenly became the business of the federal judiciary. Laws setting maximum hours and minimum wages for workers were held unconstitutional. As judicial proponents of laissez-faire capitalism were replaced by progressive judges, economic regulations received less deference. But the federal judiciary did not abandon the new found power of due process. The object of their displeasure shifted from economics to social issues such as the availability of contraceptives and abortion.

The Supreme Court’s aggressiveness was too much even for Justice Hugo Black—a New Deal liberal.  “I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions,” Black wrote, “to measure constitutionality by our belief that legislation … is offensive to our own notions of civilized standards of conduct.”  Black believed that “such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them.”

In a republic (or federation of republics) the making of public policy is left to elected representatives absent a clear and palpable violation of a written constitution. State legislators and governors are accountable to the people via the ballot box.  If the people disapprove of a labor regulation or a pronouncement on a social issue, they can remove the officials at the next election.

Federal judges serve for life and never appear on any ballot. By design they are independent, but also by design they are to leave public policy to the elected branches of government.

The due process revolution has turned the federal judiciary into the most powerful branch of government. The Bill of Rights is no longer a shield to protect the people and the states from a distant federal government, but now serves as a sword to hack away at public policy with which the federal judiciary disagrees.

As Americans observe Bill of Rights Day, they should contemplate pounding the federal judiciary’s broadsword back into the defensive shield as designed by the first Congress.