Staying Away From The Federal Courthouse

In a previous article I offered suggestions for the states to achieve independence

by weaning themselves from the federal government and the quasi-religious sentiment
now surrounding it. One ingredient I neglected to mention is rather important because it
lies squarely within our power as private citizens; at the same time, it is difficult to
swallow because it challenges firmly held notions about the Bill of Rights. Specifically,
we must stop running to the federal courthouse whenever a state or local law displeases
us. “Making a federal case” out of every nuisance has become a national pastime rivaling
baseball, and no corner of America will achieve independence or liberty until we learn to
solve our problems within our communities rather than seek federal intervention from
without.

My proposition may sound ludicrous because almost everyone now considers it

the role of the federal courts to enforce the Bill of Rights against any local, state, or
federal antagonist who would dare violate it. On the left side of the spectrum, we find
litigants eager to disrupt any attempt by state or local authorities to uphold community
standards of decorum; to prevent abortion; to acknowledge God in the public sphere; or
to preserve our ability to hire, fire, sell, lease, or otherwise associate as we choose. On the
right side of the spectrum, we also find litigants who make avid use of federal courts, but
for different reasons. This sort of litigation is geared toward disrupting attempts by state
or local authorities to license professions; to regulate economic affairs; to take or burden
private property; to remove religious symbols from public life; or to impose restrictions
on gun ownership. State and local authorities thus find themselves buffeted on all sides
by litigation that gives federal courts an obscene amount of power to decide each
community’s destiny, which goes a long way toward explaining why “community spirit”
has become a quaint notion indeed. In the process, the courts have pummeled the Bill of
Rights into an unrecognizable carcass.

A history lesson is in order here. Rightly suspecting that the newly hatched federal
government would roam beyond its enumerated powers, the “anti-federalists” insisted on
adding the Bill of Rights as a redundant safety device to emphasize certain areas where
the federal government could never tread. This was an “exclamation point” to drive home
the concept of limited federal power -- it was not meant to restrain the states, who were
not the object of everyone’s anxiety, and who retained vast power to govern as they saw
fit. Even the acclaimed John Marshall recognized this when ruling in Barron v. Baltimore
that the Bill of Rights restrains only the federal government. The Constitution imposes
only a handful of restrictions on the states. For example, they cannot exercise the narrow
powers delegated to the federal government; impose ex post facto punishment; enact bills
of attainder; or impair contracts. Accordingly, states acted in a manner unthinkable today,
such as by supporting churches and restricting broad areas of speech. Any state that
abused this power would harm only itself, since the people could vote with their feet and
diminish the tax base. Interstate competition thus served as a far better check against
governmental abuse than a monolithic, all-powerful central government possibly could.
 Today the Bill of Rights functions in exactly the opposite manner as intended: to
restrain the states and empower the federal government. This began during the twentieth
century (of course), when the Supreme Court “incorporated” the Bill of Rights against the
states even though their broad powers do not accommodate it. Since the Bill of Rights is
a mirror image of enumerated federal power, applying such rights to the states resembles
pounding a square peg into a round hole. As the Supreme Court kept pounding, the
contours of the Bill of Rights grew fuzzy, generating “exceptions” and “penumbras” that
appear nowhere in the Constitution’s text. States steadily found themselves able to do less
while the federal government reaped the benefit of these exceptions and began doing
more.

To illustrate, consider the First Amendment’s charge that “Congress shall make no
law . . . abridging the freedom of speech[.]” Nothing could be clearer than this. The
federal government may not curtail any speech. The state governments, on the other
hand, may restrain speech if their citizens choose to, and the federal courts have no
proper say in the matter. This simple, workable distinction has been eradicated. Instead,
the First Amendment now supposedly handcuffs the states from regulating everything
from schoolhouses, flag burning, “exotic dancing,” and even the states’ own courts of
law. To allow some police powers to survive, the federal courts poked holes in the First
Amendment for regulating defamation, “fighting words,” and a few other areas that the
courts in their infinite wisdom find appropriate. Apart from the indignity of having
federal courts ration powers that belong to the states, these unwritten exceptions to the
First Amendment are now available to the federal government, which regulates speech in
violation of its founding charter.

How did the federal courts get away with this? The answer lies in the Fourteenth
Amendment, which was (debatably) enacted after the Civil War and says in pertinent part
as follows:

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.

Unlike the few other prohibitions that the Constitution imposes on the states, this
one is vague, which has allowed federal courts to claim the titanic ability to strike down
virtually any state law with which they disagree. But it did not have to be this way. In the
1872 Slaughterhouse Cases, the Supreme Court had its first chance to abolish an
unpopular state law under the Fourteenth Amendment but rightly refused to do so. The
court explained that the Amendment had a narrow goal: to protect the ex-slaves --
African-Americans -- and ensure they were not deprived of their civil rights. The
Amendment was not designed for every Tom, Dick, and Harry disgruntled about his
state’s legislation. Since the dispute before the court involved a mere licensing law rather
than an attack on ex-slaves, the court exercised a restraint now extinct and made a
prescient warning:
 Was it the purpose of the fourteenth amendment . . . to transfer the
security and protection of all the civil rights which we have mentioned,
from the States to the Federal government? . . . [S]uch a construction . . .
would constitute this court a perpetual censor upon all legislation of the
States, on the civil rights of their own citizens, with authority to nullify
such as it did not approve as consistent with those rights, as they existed
at the time of the adoption of this amendment. . . . [T]hese consequences
are so serious, so far-reaching and pervading, so great a departure from
the structure and spirit of our institutions; . . . the effect is to fetter and
degrade the State governments by subjecting them to the control of
Congress, in the exercise of powers heretofore universally conceded to
them of the most ordinary and fundamental character . . . .

This warning was deadly accurate, as the modern court relishes its role as
“perpetual censor” and has inverted the constitutional order. Under the Constitution of the
Founders, the states decided which powers the federal government would have; today, it
is the federal government that decides which powers the state governments will have.

“Conservatives” and “libertarians” who run to federal court and beg for this
treatment are their own worst enemies. Their quest for a federal veto on local matters
such as gun control or property takings does just as much harm as the American Civil
Liberties Union’s quest to eradicate religion from public view or to establish abortion as a
secular sacrament. Liberty cannot survive without independence, and a temporary victory
in federal court today blazes a path to a thousand defeats tomorrow. As the Founders
understood, any power that might be abused will be abused, so it must be avoided.
Although the states abuse their power as well, such abuses have limited geographic scope
and allow us to escape as a last resort. There is no escape from federal power, unless one
wishes to expatriate or renounce citizenship (which the federal government is making
more difficult every day).

If you confront an unjust law in your state, advocate its repeal. If that doesn’t
work, vote for candidates who will one day repeal it. Failing that, bring a challenge in
state court based on the state constitution – the U.S. Supreme Court cannot interfere
unless the case involves the U.S. Constitution or federal law. And as mentioned before,
leave the state if you are ultimately unsatisfied with it; do not spoil it for the others who
wish to remain there.