Sunday, 3 January 2021

The 14th Amendment “Incorporation Cases” Violate the 10th and are Unconstitutional

 The 14th Amendment “Incorporation Cases” Violate the 10th and are Unconstitutional

Amendment 14, Section 1, in part:

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (1868)

The 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

No provision in the Constitution has undergone more torture than the due process clause of the 14th Amendment. In the name of due process, the court in the late 1800s and early 1900s struck down all sorts of state economic regulation. [1] The rationale for all these decisions was that due process had a “substantive element”—that due process protected economic freedoms, such as “liberty of contract”, from legislation infringing upon those substantive freedoms. [2]

Despite the fact that those rulings have mostly been explicitly or implicitly overruled, [3] the modern court itself has continued to commit the same sins of its forbearers. Using the rubric of due process, the modern-age court has superimposed its own substantive content onto due process, among other things holding that due process prevents states: from permitting voluntary prayer in schools, [4] from prohibiting abortions, [5] from criminalizing distribution of pornography, [6] from using incriminating evidence (usually drugs) seized without warrant or probable cause, [7] from using incriminating confessions obtained without having first advised the defendant of a right to a lawyer and a right to remain silent, [8] from criminalizing flag burning; [9] and restricting states from imposing the death penalty, [10] to name some of the more prominent rulings.

One I suppose could agree, as a matter of policy, with the results of at least some of those cases, one ought beware of accepting them as a matter of law, for the “reasoning” in the cases, as I shall attempt to show here, is wholly unsound and has led to all manner of federal intrusion into matters reserved to states and subject only to state constitutional laws.

Neither the earlier, nor the modern approach, withstand scrutiny. As Professor Raoul Berger has noted, “on the eve of the [Constitutional] Convention [of 1787], Alexander Hamilton [described due process as having] ‘a precise technical import, and [is] only applicable to the process and proceedings of courts of justice; . . . never . . . to an act of the legislature.’” [11]

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The Government Follows a 3000-PAGE Constitution


Article IV, Section 4

Guarantee Clause

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Article IV, Section 4


The Court and Constitutional Interpretation - Supreme Court

Excerpt ...

The Court is the highest tribunal in the Nation for all cases and controversies ... as well as in maintaining a "living Constitution" whose broad provisions are ...

"The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations."

Supreme court


Living Constitutionalism on the Supreme Court’s Website

by Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.  Read more


Constitution 101: Living and Breathing is the Same as Dead



In 1775, The Revolutionary War between the Colonies and Britain began. In 1788, the Constitution became the undisputed law of the land after New Hampshire became the ninth and last state required to approve it.
In 1791, the first ten amendments, known as the Bill of Rights, were added to the Constitution in order to define and protect the rights of the American people.
The Constitution was not and is not a blueprint, guideline, or set of suggestions. This one document provides the ultimate law in the U.S. and more importantly mandates limits on the power of the federal government.

Since shortly after its ratification, judges have had to interpret this over 200-year-old document in countless cases. Laws are “struck down” if a particular judge believes the law is unconstitutional. The judicial belief in how to interpret the Constitution has been the center of controversy since the beginning. There are two primary views of how judges and the public interpret the Constitution. While the rest of the column is not riveting, it is vital information to understand as a citizen.
ORIGINALISM – As pointed out below by the Heritage Foundation, those who make, interpret, and enforce the law ought to be guided by the meaning of the Constitution as it was originally written. The vast majority of Originalists begin with the text of the Constitution, the words of a particular sentence or paragraph. Textualism considers the words of the document to be authoritive while keeping in mind the traditional American principles behind the text. (Think of the text of the 1st Amendment and the reasons why our freedom loving Founders wrote it.)

Admittedly, understanding the Founders’ original intent is not always a simple task. It can take tedious work and sometimes produces vigorous disagreement. However, Originalism is logically, as opposed to emotionally, the best way to interpret the Constitution for five fundamental reasons.
1. It binds and limits any particular generation from ruling according to the passion of the times.
2. It complies with the constitutional purpose of limiting government. It understands the several parts of the massive federal government have no legitimate existence outside of the Constitution.

3. It supports the separation of power between the three branches of government by limiting the power of the judiciary. It prevents the Supreme Court, and other courts, from “creating law” which is a reserved power for the legislative branch
4. It reflects the Founders’ understanding of the self-motivated impulses of human nature. The Constitution inherently works to frustrate those impulses while leaving open channels for changing (amending) the document as needed.

5. Most importantly, Originalism is not result-oriented. If a law is unconstitutional, then so be it. The Originalist is like Chief Justice Roberts’ description of the role of a judge; judges should be like umpires calling “balls and strikes.” “Umpires don’t make the rules, they apply them.” The Originalist believes that it does not matter which party wins or loses.

LIVING DOCUMENT - Originalism has seen a steep decline over the last century with the rise of the theory of the Constitution as a "living document" or “living, breathing document” with no fixed meaning, subject to changing interpretations according to the spirit of the times.
This popular theory turns the Constitution into an unwritten charter to be developed by contemporary values. The problem here is that for some people, it can be tempting to “create rights”, “take away rights”, focus on the desired end result, and inject personal views into a case.

The primary argument supporting a “living document” theory is that we live in changing times. How could the Framers have envisioned computers in the late 1770’s? Well, humans are creative and forward thinking. Jules Verne envisioned technology in the 1800’s that still does not exist today. While the requirements for obtaining a search warrant for a smartphone may not have specifically been contemplated by the Founders, technological advances certainly were.
Additionally, the Constitution already provides for a system to live, breath, and change. The document has been amended 26 times based on mistakes and the needs and desires of our ever-changing American society. The power to amend the Constitution, though necessarily difficult, is the primary reason the document has been able to survive the turbulent changes throughout the past 200 years.

The support and/or application of the “living document” theory creates inconsistent law, regionally based law, is arbitrary, and further politicizes the judiciary.
While Originalism does not remove controversy or disagreement, it does establish the Rule of Law. Without it, our country will eventually become entirely governed by the Rule of Men.


Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. John Adams
Read more at:

We the People: A Constitutional Republic, Not a Democracy


"Federal Constitution—which banished direct democracy from our federal mechanisms of governance"

Preserving Republican Governance: An Essential Government Functions Exception to Direct Democratic Measures

James Madison, writing in Federalist No. 10, observed the difference between a republic and a pure democracy. (1) Whereas a republic consists of a scheme of representative governance utilizing a deliberative process to legislate, a pure democracy gives legislative power directly to the public. (2) The Constitution embraces representative governance at the federal level (3) and also guarantees it to the states. (4) Yet with the increased prevalence of direct democratic measures, such as ballot initiatives and referendums, the structural lines between a republican government and a direct democratic government are being blurred, producing both structural and pragmatic consequences for state governments.  Read more


The Birth of Direct Democracy: What Progressivism Did to the States


Government by Judiciary

Raoul Berger

Publication Year: 2012

The Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny.

— Raoul Berger

It is the thesis of this monumentally argued book that the United States Supreme Court—largely through abuses of the Fourteenth Amendment to the Constitution—has embarked on "a continuing revision of the Constitution, under the guise of interpretation." Consequently, the Court has subverted America's democratic institutions and wreaked havoc upon Americans' social and political lives.

One of the first constitutional scholars to question the rise of judicial activism in modern times . . . show more

Published by: Liberty Fund


Berger & the 14th Amendement


Raoul Berger Law Journal Library


Article V Project to Restore Liberty

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