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How the Supremes betrayed the states

The progressives of today may not be communists, or even socialists – depending on one’s definition – but they are indeed statists. They look to the government and the power of the masses to assure equality of results among the citizenry instead of providing equality of opportunity as a true laissez-faire society would.

~ Joe Charlebois

In the introduction to my second book, “The Inseparability of Law and Morality,” I launched my apologetic in defense of the rule of law, natural law and the original intent of the framers of the Constitution. I took as my text the First Amendment and it’s poetical refrain, “Congress shall make no law …”:

Amendment 1

“Congress shall make no law respecting an establishment of religion, or [Congress shall make no law] prohibiting the free exercise thereof; or [Congress shall make no law] abridging the freedom of speech, or [Congress shall make no law] abridging the freedom of the press; or [Congress shall make no law] prohibiting the right of the people to peaceably assemble, and [Congress shall make no law] prohibiting to petition the government for a redress of grievances.”

Like the proverbial hydra of Greek mythology, the deadly multi-tentacles of what I’ve termed the “Progressive Revolution” have so reached, affected and deconstructed every aspect of truth, law, politics, economics, culture and society that today it is nearly impossible to deduce what our Founding Fathers actually envisioned the laws of the country to be. Over the past 100 years, Congress, the president and the courts have so expanded federal power as to make states rights a dead letter. The so-called “Incorporation Doctrine” is a shameless example of the Supreme Court overstepping its enumerated powers by ruling that the 14th Amendment makes the Bill of Rights applicable to state law as well as federal law.

In the case of Barron v. Baltimore (1833), before the 14th Amendment was ratified and before the Incorporation Doctrine was developed, the U.S. Supreme Court first clearly affirmed that the Bill of Rights is applicable only to the federal government and not to the state governments. Then, in the case Gitlow v. New York (1925), which occurred in the heyday of the Progressive Era, the Supreme Court broke the settled precedent in the Barron case and unconstitutionally ruled that the 14th Amendment forbids states from prohibiting free speech. The defendant was properly convicted under New York’s criminal anarchy law for advocating the violent overthrow of the government through the distribution of pamphlets promoting communism.

In an internecine struggle, Benjamin Gitlow, “a member of the ‘left wing’ of the Socialist party,” wrote a paper repudiating the “moderate” wing of the party. But Gitlow didn’t just exhibit the classic communist propaganda of the time. His speech went outside mere abstract analysis and predictions and called for tactical action. For example, Gitlow had urged “mass strikes for the purpose of fomenting … disturbance.” In doing this, Gitlow had committed a crime against the State of New York, which had a criminal anarchy law forbidding such conduct.

Barry Krusch, in a very good book, “Will the Real First Amendment Please Stand Up,” wrote that Judge Sanford, writing for the majority in Gitlow, at first seemingly agrees that the First Amendment does not apply to state governments:

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.

Krusch continued that “This paragraph, while false as applied to Federal law, is true as applied to law authored by State governments. So it would seem that Sanford’s next move would be to point out, correctly, that the First Amendment is inapplicable here.”

Faced with the plain, black-letter text of the Constitution, Justice Sanford would not be deterred in reaching the legal conclusion he wanted to reach as an activist judge – the Constitution be damned! So rather than follow the Constitution and uphold the New York law, Justice Sanford would first “incorporate” the First Amendment into the 14th, and then use the resulting unconstitutional situation (given the explicit language of the First) to point out the defect of this incorporation. Here is Justice Sanford’s famous incorporating paragraph so familiar to American law students:

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 14th Amendment from impairment by the states.

Krusch wrote that “For present purposes”? That’s a curious phrase! Why is it only for “present purposes” that one makes such an extraordinary re-interpretation of the Constitution? Are we to infer that for “other purposes” these “rights” will not be protected? If that’s true, then what are those purposes? And where in the Constitution does it say that the Constitutional flowchart is to be revised whenever “present purposes” require it? We aren’t told.

In my opinion, this famous “present purposes” paragraph was a shameless usurpation of constitutional power not enumerated to them when just three years before the Court had emphatically ruled that “neither the 14th Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech.’ …” In other words, the Court should have acknowledge the obvious – that the 14th Amendment allowed speech regulation by the state of New York, which would have given the same result while protecting the First Amendment and silencing the seditious communist defendant Gitlow.

In conclusion, not only does Gitlow remain incarcerated, but the First Amendment gets re-defined and deconstructed in the process because since the advent of the Progressive Revolution in the 1870s, what liberals and progressives can’t win at the ballot box they create out of whole cloth with a oligarchy on the Court. This brings me to this question of ultimate concern – Why does SCOTUS, even its most conservative members, tragically continue to follow the transparent, unconstitutional precedents of the Incorporation Doctrine?