Fruity Con Law at Meridian

May 19, 2004 | 23 comments
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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.

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23 Responses to Fruity Con Law at Meridian

  1. Adam Greenwood on May 19, 2004 at 12:59 pm

    Both you and the article you criticize act as if ‘selective incorporation’ were of a piece with incorporation at all. I think not. Clearly one could argue that not all of the Bill of Rights were meant to incorporate fundamental rights, but I’ve never seen an opinion that made a coherent argument (or any argument at all, really) as to why some of the Bill of Rights get incorporated and others not. In one area of law that I have an interest–Takings law–incorporation has been rather a mixed bag and I’d be curious to know why Takings was incorporated in the first place.

    Also, your defense of ‘incorporation’, or at least of a fundamental rights interpretation of the 14th amendment, doesn’t really address who decides what those fundamental rights are, Congress or the Court.

    As to the big question: most Mormons are much less-informed about the Constitution than you because you are brilliant and a fiend for the law, and they are not. They’re willing to sieze on constricted interpretations of the Constitution because they do reverence the document but expanded interpretations have been used to advocate moral views they can’t stomach and because, the Constitution being almost a religious document from our standpoint, it seems wrong that one couldn’t understand it without massive scholarship or that it should be so vague.

  2. Frank McIntyre on May 19, 2004 at 1:15 pm

    Are mormon arguments about con. law any worse than others? Undoubtededly there are many bas arguments made, in con. law and elsewhere. But I am not convinced that our status as a “peculiar people” includes nuttier arguments than the normal range of nutty arguments.

  3. Nate Oman on May 19, 2004 at 1:16 pm

    Adam: I think that there have been a couple of discussions of selective versus complete incorporation. As I recall Frankfurter and Black went around the barn a couple of time on this issue in a couple of opinions in the 1940s and 1950s. Can’t recall which. Another place to look would be the case (don’t have name or cite, sorry) that held that the 7th Amendment’s jury requirement was not incorporated against the states.

  4. Eric James Stone on May 19, 2004 at 1:16 pm

    I haven’t read the article in question, so I don’t know anything about its merits (or lack thereof.) But I have to say I’m somewhat surprised by your take on the due process clause of the 14th Amendment.

    I think you’re probably right that the 14th Amendment was intended to broaden protections of fundamental rights. But I very much doubt that the due process clause was the intended vehicle for such a change; the priviliges and immunities clause seems a much more likely candidate.

    The 14th Amendment due process clause clearly mirrors the 5th Amendment due process clause. The reasonable interpretation of that would be that the 14th Amendment version was the same restriction on the states that the 5th Amendment version was on the federal government.

    Now, we have a whole string of precedents that essentially interpreted the priviliges and immunities clause very weakly and the 14th Amendment due process clause very strongly, and maybe as a practical matter the results would have been the same with a weak due process and strong privileges and immunity interpretation. But that doesn’t mean the 14th Amendment due process clause hasn’t been unreasonably distorted by the doctrine of incorporation.

  5. Adam Greenwood on May 19, 2004 at 1:21 pm

    I didn’t really intend my first two paragraphs as criticisms of your post, though they come across that way. I understand you’re responding to a specific argument and not every possible argument.

  6. Adam Greenwood on May 19, 2004 at 1:27 pm

    Thanks for the pointer, Nate. I get frustrated because the SuCo first applied Takings with practically no discernible argument, or mention of the 14th amendment, (without a whole lot of thought or explanation) and sometime later the case started getting cited as the one that explained why Takings was incorporated into the 14th Amendment. You’ve got me.

  7. MDS on May 19, 2004 at 1:54 pm

    Those wondering what Nate is talking about, and wanting to read the Supreme Court debates on the issue, should check out Adamson v. California, which is available at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/adamson.html

  8. Nate Oman on May 19, 2004 at 1:58 pm

    Eric: I agree that the Priveleges and Immunities Clause probably had a more radical original meaning than the due process clause. However, I still think that due process (in both 14th and 5th amendments) invoked a buch of natural law concepts that gave it a much more expansive meaning than suggested by the Meridian article. What would be shocking is if American lawyers and congressmen writing a constitutional provision in the 1860s was to adopt the kind of post-New Deal, Borkian positivism advocated by the Meridian guy.

  9. Jason Whiteley on May 19, 2004 at 3:12 pm

    Akhil Amar has advanced an argument that some provisions of the bill of rights should be incorporated against the states while others should not. His argument is that some of the provisions of the bill of rights are more about the relationship between the states and the federal government than they are about protecting individuals from the federal government. The establishment clause, for example, which says that Congress shall make no law respecting an establishment of religion was an attempt to reserve the establishment question to the states not establish an anti-establishment principle. Steve Smith (LDS scholar at Notre Dame has taken this view as well). If the establishment clause was meant prevent the federal government from getting involved in what was then viewed as a state matter, it would be difficult to argue that it should be incorporated into the Fourteenth Amendment and applied against the states. Not sure how this line of thought would apply to the takings question.

    A remaining question is whether one determines the original meaning of, say, the establishment clause for incorporation purposes by relying on the understanding of the Bill of Rights framers or the understanding of the 14th amendment framers. If the 14th amendment framers believed the establishment clause created an anti-establishment principle, instead of deferring to the states as Amar argues, then perhaps it should be incorporated. Kurt Lash took this argument up in a ’95 Arizona law review article.

    In any event, I’m not sure we’ll every really know exactly what either set of framers/adopters was really thinking which makes me think that, in matters of constitutional law anyway, there has to be room for some flexibility in interpretation–at least to the extent interpretations aren’t plainly contrary to what we can discern about the original meaning.

  10. lyle on May 19, 2004 at 3:37 pm

    I haven’t started reading the Meridian series yet; but will note that Joseph Smith def. thought that the Fed. Govt should enforce the Bill of Rights against Offending States. Not that he is a con law scholar or part of SCOTUS…& I don’t remember him giving any justification/legal reasoning as to why this should be so.

  11. clarkgoble on May 19, 2004 at 6:17 pm

    Adam makes a good point. Mormons do treat the constitution as a quasi-religious scripture. Yet figuring out exactly how to read the constitution is quite difficult to lay people. On the other hand I’m not sure reading the scriptures is that much easier. I think the bias we have that these things be “straightforward” and easy to understand comes from the conservative Protestant view of hermeneutics of the Bible. It is unfortunate. I suspect in a way these readings of the constitution come from that same mindset of Biblical hermeneutics.

  12. brayden on May 19, 2004 at 6:32 pm

    Was the constitution meant to be read like scripture? I find it amusing that Mormons often treat it as if it were. I know the U.S. is great and everything, but which constitutions (meaning constitutions of which countries) do we believe to be _uninspired_ works of men? Are state constitutions inspired of God? In my days as a research assistant studying changes in constitutional law, I’ve read a lot of messed up state constitutions.

  13. Mark Butler on May 20, 2004 at 3:03 am

    The word of the Lord unto Joseph Smith, December 16, 1833, Kirtland, Ohio: “And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose” (D&C 101:80).

    The purpose, in context, is the end of slavery, and the establishment of moral agency, “That every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.” That sounds like a pretty ringing endorsement to me. Some state constitutions (e.g. the Pennsylvania Constitution) share the same spirit, others not so much.

  14. Jeremiah J. on May 20, 2004 at 7:52 am

    The con law issues raised in reference to this article are interesting. But there is a separate issue, which Adam and Clark addressed indirectly: the dubious propriety in publishing an article labeled as a “primer”, intended for a novice audience, which goes on to lay out an argument which, fruity or not, involves complex concepts and principles which the intended audience does not fully understand. “Primer” is right–it primes you to reject alternative interpretations of the constitution before you even understand the underlying issues.

    I don’t want to make too much of this, but it seems to be a misuse of scholarship within the community to use our knowledge to give fellow saints a list of scholarly talking points from which to defend a view of the constitution which they already hold or are readily disposed to hold, but have not considered well. This is especially true of con law, since it seems that the truth of Mormonism is compatible with a wide variety of approaches in this field (this may not be the case in, say, metaphysics, philosophical theology, or Biblical studies).

  15. brayden on May 20, 2004 at 4:14 pm

    The Lord’s endorsement of the constitution isn’t the same thing as saying that it is scripture. There are many things that people are inspired to say that never make it into the canons of scriptural thought. While the entire document may have been constructed under the inspiration of the Spirit, it is doubtful that every statement drafted in the document constituted revelation, which is what my idea of scripture is.

  16. lyle on May 20, 2004 at 4:24 pm

    Brayden has a great point; but I would delimit it somewhat. As many have so pointedly pointed out…the Proclamation on the Family isn’t “Canon.” However, that doesn’t stop it from being the Word of God given to & published by the 15.

  17. brayden on May 20, 2004 at 5:29 pm

    Lyle – Sure, but even then the Proclamation is deemed by most LDS to be revelation, whereas the Constitution(s) was only inspired text. There are many things that are inspired that we don’t treat with such reverent awe. I mean, Shakespeare was, in my mind, an inspired writer, but he doesn’t receive the same level of adoration in Mormon society. There are many international treaties that I believe were inspired documents, but they are rarely cited by Mormons as scriptural in content.

  18. mjpritchett on May 20, 2004 at 8:13 pm

    We often refer to the Constituion as being “inspired”, but I note that Section 101 says “wise” men, not “inspired” men.

  19. Greg Call on May 20, 2004 at 8:59 pm

    Welcome, MJ! I’ve often wondered how much of our “constitution is inspired” idea comes from Joseph (as quoted above) and D&C 101, as opposed to Wilford Woodruff’s vision of the whole motley crew in the St. George temple and our flowering patriotism in the early 20th century. Did this “doctrine” peak before or after the movement toward assimilation began?

  20. lyle on May 21, 2004 at 7:45 pm

    The WSJ on-line (i.e. op-ed) takes some pot-shots at the doctrine of “incorporation” as comparable to “slippery slope” arguments, i.e. CON LAW logic. Take a look below:

    “Lithwick thinks the slippery-slope argument itself is fundamentally flawed: “The problem with the slippery slope argument is that it depends on inexact, and sometimes hysterical,comparisons,” she writes. Also: “Slippery slopes are only metaphors. They are not intrinsic principles of law.”

    Yet the way American constitutional law works, slippery slopes are almost inevitable–a
    point that is more easily understood if we think of same-sex marriage as coming at the
    end of such a slope rather than the beginning.

    In 1868 Congress and the states ratified the 14th Amendment, the first section of
    which was designed to protect the rights of black Americans, newly freed from slavery.
    But the amendment’s language was much more sweeping:

    All persons born or naturalized in the United States, and subject to the
    jurisdiction thereof, are citizens of the United States and of the state
    wherein they reside. No state shall make or enforce any law which shall
    abridge the privileges or immunities of citizens of the United States; nor
    shall any state deprive any person of life, liberty, or property, without due
    process of law; nor deny to any person within its jurisdiction the equal
    protection of the laws.

    The 14th Amendment was the basis for the landmark Brown v. Board of Education
    decision of 1954, which declared unconstitutional the segregation of government
    schools. But it has also been the basis for a series of other court decisions that have
    profoundly affected American life but have nothing to do with the rights of blacks.

    The equal protection clause has been construed to apply to various sorts of nonracial
    discrimination, while the doctrine of “incorporation” has led to myriad restrictions on
    state policy in the name of enforcing the Bill of Rights (including judicially discovered
    rights like privacy), which originally limited only the federal government.

    A partial list of the Supreme Court-driven changes we owe to the 14th Amendment:

    The ban on prayer in government schools and other restrictions on religious
    expression in public venues (Engel v. Vitale, 1962, and subsequent decisions).

    The establishment of a constitutional right to contraception (Griswold v.
    Connecticut, 1965).

    The right to abortion (Roe v. Wade, 1973).

    The right, subject to limits that are minimal in practice, to distribute pornography
    (Miller v. California, 1973).

    The abolition of all state laws against consensual gay sodomy (Lawrence v.
    Texas, 2003).

    Same-sex marriage isn’t on this list yet, because the U.S. Supreme Court hasn’t
    spoken on the issue. But the Massachusetts Supreme Judicial Court relied heavily on
    Lawrence in its decision mandating it last year–proving that Scalia was correct in at
    least one aspect of his slippery-slope argument.

    The point of this list is not to make a judgment as to whether any of these cases were
    good law or good policy. It is simply to underscore the extreme unlikeliness that the
    framers of the 14th Amendment could have foreseen any of these results in 1868.

    Yet there is a logical progression from the sweeping language of the 14th Amendment
    to the jurisprudence of the late 20th and early 21st centuries. Once the court had
    established a right to marital privacy in Griswold, it wasn’t that much of a leap to
    expand it to include unmarried people, abortion and homosexuality. Indeed, the court’s
    1986 decision in Bowers v. Hardwick, which declined to strike down sodomy laws, left
    the court’s privacy doctrine looking incoherent: If government was to stay out of
    abortion clinics, what business did it have in the bedrooms of consenting adults?

    Imagine if a conservative Southern politician had reacted to Brown v. Board of
    Education in 1954 by issuing the following prediction: “If the court can strike down our
    precious institution of segregation, are there any limits? One day it will affirm the right
    to practice sodomy, and men will even marry men.” History would have recorded this
    as a bigoted and hysterical pronouncement. But purely as a matter of prognostication,
    our hypothetical politician would have been proved right. At least where the law is
    concerned, one shouldn’t be too quick to scoff at slippery-slope arguments.

  21. jeremobi on May 21, 2004 at 8:28 pm

    “But purely as a matter of prognostication,
    our hypothetical politician would have been proved right. At least where the law is
    concerned, one shouldn’t be too quick to scoff at slippery-slope arguments.”

    I’m not sure the dots connect. Without creation of a counterfactual and considerable effort to process trace policy options, we cannot say that SSM would not occur but for Brown.

    Other countries, for example, now experiment with SSM and are not bound to the logic of Brown decision.

    The example of the bigot is a case of fear coinciding with reality.

  22. lyle on May 21, 2004 at 9:02 pm

    Jeremobi: Um…the point wasn’t to say that BROWN (itself) was the cause or led to SSM. The point was that slippery-slopes are part of constitutional interpretation now that we don’t care about original intent or at least strict interpretation, etc.

    To avoid sarcasm & be obvious…I wonder what the early Mormons would have thought about the prospect that they would be scourged & killed from state to state & denied their religious free exercise as proclaimed in plain english (literally & legally) in the Constitution?

    Would it just be fear coinciding with reality? Does that, or any other facile explanation, shrug off the (il)logic of current SCOTUS jurisprudence & its effects on society?

  23. Kaimi on June 2, 2004 at 12:52 pm

    I just glanced at the latest one of these. I agree completely with Jeremiah’s critique, which I think hits the nail on the head. These are advocacy pieces, disguised as educational pieces.

    There’s nothing wrong with advocacy, or with bolstering your own argument and downplaying counter-arguments in an advocacy piece. But it is deceptive to say, “here are some basic informational articles about con law” and then present pure advocacy that ignores the actual state of the law, and only presents one side of a debate which is by no means settled.

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