The ever exciting Meridian Magazine has been running a series of articles that purport to be “Constitutional Primers,” explaining to Mormons the way that the constitution functions. The most recent one argues that what is known as “selective incorporation” under the 14th amendment is a mistake. This doesn’t sound all that interesting or exciting, but it actually is. I promise.
“Selective incorporation” refers to the very well settled rule of constitutional law that the due process clause of the 14th amendment makes certain provisions of the Bill of Rights applicable to state governments. Thus, if the state of Arkansas was to pass a law saying that all Mormons will be fined for attending sacrament meeting, the law would be unconstitutional because the Free Exercise Clause of the First Amendment is applied to the states under the Due Process Clause of the Fourteenth Amendment. According to the Meridian collumnist this is a mistake. He argues that this is an example of judicial usurpation and that the Bill of Rights ought not to apply to the states. Rather he takes the position that the 14th Amendment’s due process clause did nothing more than guanrantee to blacks equal rights with other citizens.
The problem is that this argument is bunk. On the authority of a single 1949 law review article, the collumnist argues that the framers of the 14th amendment had no grander intentions for the due process clause. Setting aside for a moment the problems involved with “original intent” jurisprudence. (Not even Justice Scalia and Justice Thomas believe in original intent.) There is ample evidence that many of the movers and shakers behind the 14th amendment thought that it did work a fundamental change in the structure of the constitution and the scope of judicially protected rights. Certainly there were any number of jurists from the Civil War generation that took this position (e.g. Justice Field). Furthermore, the phrase “due process of law” in English speaking jurisprudence has always carried with it connotations of protecting fundamental rights.
What is really ironic about the collumnist at Meridian bagging on selective incorporation was that the incorporation doctrine was conceptualized as a way of limiting rather than expanding the reach of due process. The idea was that rather than saying that the due process clause of the 14th amendment gave courts a general right to invalidate laws that violated “fundamental rights” or some similarlly vague concept, we would say that the meaning of “due process” was simply confined to some of the key provisions of the Bill of Rights (or all of the Bill of Rights if you are Justice Black). The reality is that the Civil War Amendments originally had a much broader scope.
Mormons tend to have great veneration for the constitution, but I am sometimes puzzled as to why we feel the need to express that veneration by subscribing to bad arguments about constitutional law.