Introduction

           The high priest of the pernicious concept known as the “Living Constitution” was the late Supreme Court Associate Justice William J. Brennan, Jr. According to Brennan, the Constitution of the United States of America

embodies the aspiration to social justice,[i] brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline.  The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.  * * * When Justices interpret the Constitution they speak for their community, not for themselves alone.  The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought.  * * * But the ultimate question must be, what do the words of the text mean in our time.  For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.[ii]

           In other words, the concept of a “Living Constitution,” so central to liberal jurisprudence and evident in so much Supreme Court adjudication, means no Constitution at all. 

A “Living Constitution” is anti-democratic because it removes from the public forum and from those politically accountable, and thus from the electorate itself, important issues of social, economic, and other policy, and reposes those issues in federal judges, especially nine unelected philosopher kings and queens appointed for life and accountable to no one.

What has made it possible for the “Living Constitution” to thrive is the so-called Incorporation Doctrine—a judicial construct at which the Founders, federalist and anti-federalist alike, would doubtless have scoffed.

           An examination of the Incorporation Doctrine begins with an undeniably valid premise: The Bill of Rights was intended by Madison who introduced it, by the Congress that approved it, and by the states that ratified it, to apply only to actions by the federal government. Indeed, the First Amendment begins by reciting that “Congress shall make no law . . . .” [iii]  

           Never was a political intent, or a legal statement, clearer.  Even those who would have it otherwise concede that in the early days of the Supreme Court of the United States it ruled squarely that the Bill of Rights was not applicable to the states.[iv]   Eminent constitutional law scholars have recognized that “[t]his holding was correct historically because the drafters of the Bill of Rights designed the amendments as a check on the new national government.”[v]

           How, then, has the Supreme Court been able to hold unconstitutional under the federal Constitution acts of the states violating such rights as free speech, protection against double jeopardy, and many other guarantees found in the federal Bill of Rights?

           The answer lies in the Incorporation Doctrine and the Due Process Clause of the Fourteenth Amendment:  “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”[vi]

           Even though the federal Bill of Rights contains at least thirty specific rights-guarantees—one of which is the Fifth Amendment’s own Due Process Clause—in a series of cases beginning with Gitlow v. New York[vii] the Supreme Court ruled that the Fourteenth Amendment’s Due Process Clause, as the centerpiece of the “Living Constitution,” “incorporates” many of those same guarantees, thus making them applicable to state action.

 ______________________

[i] On August 1, 2005, Dr. Thomas Sowell wrote at www.townhall.com: “I never cease to be amazed at how often people throw around the lofty phrase ‘social justice’ without the slightest effort to define it.  It cannot be defined because it is an attitude masquerading as a principle.”

Gitlow v. New York[i]

“Incorporating” the Bill of Rights

            Benjamin Gitlow was an interesting character.  At 18, he was a Socialist.  At 22, he was the first president of the Retail Clerks Union of New York, and at 26 Gitlow was elected to the New York State Assembly.  In 1919, Socialists of a more revolutionary flavor, like Gitlow and the legendary John Reed, founded the Communist Labor Party, which later became the Communist Party of the United States.  Gitlow ran as the Communist candidate for Vice President in 1924 and 1928.

            Before his Quixotic quest for high political office, Gitlow spent three years in New York’s Sing Sing prison on a conviction for violating that state’s 1902 criminal anarchy law.  That statute made it a crime to encourage the violent overthrow of the United States government. 

According to the Supreme Court of the United States, “[t]he indictment was in two counts. The first charged that the defendant had advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled ‘The Left Wing Manifesto’; the second that he had printed, published and knowingly circulated and distributed a certain paper called ‘The Revolutionary Age,’ containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence and unlawful means.”[ii]

At his trial, in two New York appellate courts, and in the Supreme Court of the United States, Gitlow argued that the criminal anarchy statute as written and applied to him violated the Due Process Clause of the Fourteenth Amendment.  But not because there were any procedural (i.e. “process”) irregularities in either the law or its use against him, but because the statute was “substantively” unconstitutional in its punishment of what Gitlow rightly characterized as pure speech.

 In effect, though not explicitly, Gitlow was invoking against state action proscribed by the Fourteenth Amendment, the First Amendment which applied only to action by the federal government.

Both New York appellate courts held the criminal anarchy statute constitutional.

So did the Supreme Court, which thus [wrongly] upheld Gitlow’s conviction for pure speech.

Even worse, in doing so the Court made a statement that set the stage for later “incorporation” of virtually every provision of the Bill of Rights into the Fourteenth Amendment’ due process guarantee, and endowed that previously purely procedural amendment (“due process”) with the power to test the substantive content of all state laws:

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.

In other words, the Due Process Clause of the Fourteenth Amendment had First Amendment “content,” and the former’s guarantee that “no state shall deprive any person of life, liberty, or property, without due process of law” meant that “no state shall abridge the freedom of speech.”  And if a state law affecting speech was challenged on the ground that it did abridge free speech, the Supreme Court had the power to assess the substantive content of that law (e.g., punishing pure speech by anarchists) to ascertain if it passed constitutional muster.

That left open the question of what criteria—what litmus paper—the Court would use to decide whether, substantively, a state law was constitutional or not

The Gitlow Court began by observing that there was no absolute right of free speech (or press) under the First Amendment:

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. * * * Reasonably limited . . . this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.

Note that, according to the Court as long ago as1925, free speech is a mere “privilege,” and that it is subject to “limitation.”

Limitation, then, by what standard? 

The Court was not bashful about its answer: “That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question.”

Having concluded that Gitlow’s over-the-top Communist ranting was indeed “inimical to the public welfare,” the Supreme Court upheld his conviction and sentence, employing some hyperbole of its own: “The State [New York] cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.”

Even though the Supreme Court upheld the New York criminal anarchy statute and with it Gitlow’s conviction, more important to the future of constitutional law was that the Court tested that law not by the Constitution’s Fourteenth Amendment (“[N]o state shall deprive any person of life, liberty, or property, without due process of law”), but by the First Amendment (“Congress shall make no law . . . abridging the freedom of speech . . . .”)—and that the essence of the Court’s test was whether “substantively” the statute was “inimical to the public welfare” and thus constitutionally within New York’s power to protect the public.

Justices Holmes authored a dissent for himself and Justice Brandeis.

Most interesting about that dissent is that Holmes and Brandeis shared their colleagues’ view that the Fourteenth Amendment contained First Amendment content which, through “incorporation” would be read into the Fourteenth.

Why, then, did they dissent? 

Not because they believed New York was powerless to punish subversive speech, for they found no fault with the statute itself.

 And not because they believed the Court lacked the judicial power to evaluate the substantive content of the statute, for they assumed that the Fourteenth Amendment’s Due Process Clause could substantively test the constitutional appropriateness of the criminal anarchy statute.

Holmes and Brandeis dissented because they disagreed only about whether under the facts of the case Gitlow’s speech was truly “inimical to the public welfare.”  If it was, he could be sent to Sing Sing.  If not, he should have been set free. 

Those facts were to be assessed under the test the Court had developed in the earlier World War I free speech case of Schenck v. United States, where Schenck and others went to prison for protesting conscription.  In Schenck, Holmes had written that: “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent.”[iii]

In Gitlow, Holmes and Brandeis thought not; there was, in their opinion, no “clear and present danger.”

It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.[iv]

            Thus, Holmes and Brandeis, too, subscribed to their colleagues belief that the Fourteenth Amendment “incorporated” the free speech guarantee of the First Amendment, and that state action allegedly violative of it could be examined substantively by the judicial power of the Supreme Court in order to ascertain whether the law under attack was constitutionally acceptable. 

            During the ensuing years, incorporation of virtually all other provisions of the Bill of Rights occurred—and what started with a case about politics, eventually led to a case about contraception.

However, Cardozo continued, “[o]n the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress . . . or the like freedom of the press . . . or the free exercise of religion . . .  or the right of peaceable assembly, without which speech would be unduly trammeled . . . or the right of one accused of crime to the benefit of counsel . . . . In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments[iv] have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.”

So which way to go?  Where to draw the line?  How to decide whether a particular guarantee of the federal-protecting Fifth Amendment (or any other ) is somehow magically transported against the states through the conduit of the Fourteenth Amendment?

Cardozo and his seven colleagues (the vote was 8-1) had an answer.  Though his words read today as somewhat archaic, his meaning was clear.  He began with an analogy:

The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [v]

OK, but what about double jeopardy.  Cardozo applied the same litmus test:

 Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our policy will not endure it? Does it violate those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”? * * * The answer surely must be “no.”  What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. * * * This is not cruelty at all, nor even vexation in any immoderate degree. If the trial had been infected with error adverse to the accused, there might have been review at his instance, and as often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the presiding judge . . . has now been granted to the state. There is here no seismic innovation. The edifice of justice stands, its symmetry, to many, greater than before.[vi]

At first glance, one could conclude that the near-unanimous decision in Palko v. Connecticut well serves appropriate constitutional principles.  After all, the Court rejected Palko’s argument that the proscriptions against the federal government found in the Bill of Rights are not equally proscriptive of state conduct under the Due Process Clause of the Fourteenth Amendment.  Not necessarily, at least.

But that is a pyrrhic victory indeed.  For in the process of confining the Double Jeopardy Clause of the Fifth Amendment, the Court loosed a doctrine more pernicious than the one it was rejecting.

In assaying the “meaning” of the Due Process Clause, the amorphous, subjective, meaningless Court-created “test” by which to measure unconstitutional state action—“the very essence of a scheme of ordered liberty,” a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” “a hardship so acute and shocking that our policy will not endure it,” and “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”—was worse than no “test” at all because it provided the Court with a roving commission to translate the policy predilections of nine philosopher kings into what was supposed to pass for constitutional law.  That the rights of any American—murderer and mom alike—should rest on such indefensible pap was scandalous, let alone dangerous, in the extreme.

Raoul Berger again:

As in the case of the Chinese “mandate from heaven,” we learn a right is “fundamental” only after the Court attaches that label. * * * “Ordered liberty,” as Louis Lusky states, “is too vague to describe a national objective.  It says that order and liberty are both to be sought, but provides no standard for reconciling the eternal conflict between them.”  “It is a vehicle,” he justly comments, “for whatever meaning the Court gives it, and thus enables the Court to apply its own conceptions of public policy.”

And again:

Justice Byron White likewise regards the concept as no more than a means whereby a majority of the Court can impose “its own philosophical predilections upon State legislatures or Congress.”  And Justice Black maintained that the concept merely embodied “‘natural law due process’ notion[s] by which this Court frees itself from the limits of a written Constitution.”

Today, nearly three-quarters of a century after the Palko decision, those “philosophical predilections” of which Justice White spoke predominate in Supreme Court “interpretation” of the Due Process Clause of the Fourteenth Amendment. 

  Griswold v. Connecticut[i]
Manufacturing the “Right of Privacy.” 

             Estelle T. Griswold was Executive Directgor of the Planned Parenthood League of Connecticut.  Dr. C. Lee Buxton was a licensed physician, a professor at the Yale Medical School, and the league's medical director at its New Haven, Connecticut, center.

            The popularly elected legislature of the state of Connecticut had enacted two statutes dealing with the subject of contraception.  The popularly elected governor of the state had approved them.  Connecticut’s intermediate appellate court had upheld the statutes’ constitutionality.  So did the state’s highest court. In other words, the people of Connecticut and their political and legal institutions all approved of the two statutes.

            One section of the statute provided that “[a]ny person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifth dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” 

The other section provided that “[a]ny person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”

According to the Supreme Court, as part of their medical practice, Griswold and Buxton each “gave information, instruction, and medical advice to married persons as to the means of preventing conception.  They examined the wife [of the married couple] and prescribed the best device or material for her use.  Fees were usually charged, although some couples were serviced for free.”[ii]

Because of this conduct, Griswold and Buxton were charged as accessories to their clients’ crime of using contraceptives.  They were found guilty, and eventually their case reached the Supreme Court of the United States.

The Court’s majority opinion, written by Justice William O. Douglas stands as a testament to the dual vices of “incorporation” and “substantive” due process.[iii]  In a barely three-page opinion, Douglas prospected his way through the Constitution.  Although what he found was fool’s gold, it glittered enough to satisfy six of his colleagues.  Indeed, Douglas’s majority opinion for himself and the others is a love song to incorporation and substantive due process:

[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described in [an earlier case] as protection against all governmental invasions “of the sanctity of a man's home and the privacies of life.”[iv].  We recently referred . . . to the Fourth Amendment [protecting against unreasonable searches and seizures] as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”[v]

            Next, Douglas noted that there had in the past been “many controversies over these penumbral rights of ‘privacy and repose,’ and concluded that earlier cases—not one of which had ever constitutionally enshrined a “right of privacy” relating to contraception—“bear witness that the right of privacy which presses for recognition here is a legitimate one.”[vi]

Note that in his prospecting through the Constitution for a “right of privacy” by which the Connecticut state law could be held unconstitutional, Douglas invoked provisions of the federal Bill of Rights—which, as we know, were not supposed to apply to the conduct of states.

Incorporation is, of course, unjustifiable even when it involves an express provision of the Bill of Rights, as for example the free speech guarantee of the First Amendment.  It’s even worse when what is incorporated against the states is a provision not expressly found in the Bill of Rights but instead something divined from “emanations” and “penumbras.”

Undeterred by his inventing constitutional law as he went merrily on his way, Douglas concluded by utilizing the weapon that his incorporation had given him, “substantive due process.”

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” * * * Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.[vii]

            Compared to this pretentious mumbo-jumbo, Justice Stewart’s dissent (joined by Justice Black) focused on incorporation and substantive due process.  Characterizing the Connecticut statute as “an uncommonly silly law,” Stewart recognized that the Court was not being asked “to say whether we think this law is unwise, or even asinine.  We are asked to hold that it violates the United States Constitution.  And that I cannot do.”

            Why not, since six of his colleagues apparently had no trouble doing just that?

            In a direct reproach to Douglas having rutted around in virtually all of the Constitution’s amendments, Stewart replied that:

[a]s to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States.  It has not even been argued that this is a law “respecting an establishment of religion, or prohibiting the free exercise thereof.”  And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  No soldier has been quartered in any house [Third Amendment].  And there has been no search, and no seizure.  Nobody has been compelled to be a witness against himself. [viii]

            It appears from the structure of Justice Stewart’s dissent that when he finished his seemingly exasperated search through the Bill of Right for some provision—any provision—from which he could discern the emanations and penumbras that Douglas had discerned, a simple question had to be asked: “What provision of the Constitution,” Stewart wrote, “make[s] . . . this state law invalid?  The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees’.”[ix]

            Well, that wasn’t good enough for Stewart: “With all deference,” he wrote, “I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”

            Stewart ended his dissent by a broad statement about judicial power, and by implication about incorporation and substantive due process:

At the oral argument in this case were told that the Connecticut law does not “conform to current community standards.” But it is not the function of this Court to decide cases on the basis of community standards.  We are here to decide cases “agreeably to the Constitution and laws of the United States.”  It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.  If, as I should truly hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it.  That is the constitutional way to take  this law off the books.

                At the end of these comments, Justice Steward inserted an interesting and important footnote: “The Connecticut House of Representatives recently passed a bill . . . repealing the birth control law.  The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court.”[x] 

Not only did the one-house repeal demonstrate the “silliness” of the statute and its unacceptability to the people of Connecticut, the legislative action underscored that the use of judicial power to rewrite the Constitution through the incorporation and substantive due process doctrines is at once politically arrogant, legally unnecessary, and constitutionally unjustified.

And dangerous—because Douglas’s ersatz “right to privacy” would later be employed by the Supreme Court in Roe v. Wade to justify invalidating virtually every state law affecting abortion.