Acts of Omission

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging 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.

These words are from the First Amendment to the Constitution of the United States. Do you notice anything striking about them?

Read again the first five words: Congress shall make no law…

Given these plain words—Congress shall make no law– how do we explain the many limits on personal freedoms we find in the history of our country? For example, if Congress shall make no law against whites and blacks assembling together, how do we explain a 165-plus year history of enforced segregation in the U.S.?

If Congress shall make no law against the marriage of whites and other races, or of the marriage of members of the same sex, how do we explain a history of governments forcibly preventing those marriages?

One potential answer may lie in this question. Do those words say, “the state of Nebraska shall make no law” or “a corporation shall make no rule” or “a religious organization shall make no canon” or “the president shall make no signing statement?”

The answer of course is no, and therein lies the source of almost all socially and culturally restrictive laws in the United States. The restrictions mentioned and others were and still are a product of state laws.

How can this be? How can states make laws that violate the Constitution? That’s a leading question. These laws do not violate the plain words of the Constitution. The rationale is simple when you think about it: the Constitution doesn’t specifically say we can’t; therefore, we can. We’ve all used this logic in our daily lives. I have. So do those who legislate and interpret laws.

Or to put it in constitutionally-relevant terms, the Bill of Rights did not originally apply to the states, and even now, a few of those pesky First Ten Amendments to the Constitution still do not restrict state action. Consider:

• 1833. The Marshall Supreme Court concluded there was no expression in the Bill of Rights “indicating an intention to apply [guarantees of the Bill of Rights] to the State governments. This court cannot so apply them.” From David M. Obrien’s Constitutional Law and Politics: Volume II, Civil Rights and Civil Liberties.
  
• 1845. The Marshall ruling reaffirmed.
  
• 1922. Supreme Court rules “the Constitution of the United States imposes upon the states no obligation to confer upon those within its jurisdiction…the right to free speech.” From O’Brien.
  
• Present. Marshall’s original ruling of 1833 has never been reversed by the Supreme Court or otherwise expressly overruled. O’Brien.
  

Why would the all-seeing, all-knowing Founders have omitted a restriction on state power? To begin with, the Founders were the products of their time and place and an existing social and cultural order with all of the attendant norms. The “people of the United States” were previously British colonists whipped around at the whim of King George. When they gained independence, they decided that any central government they created would have no such power over their lives.

The Founders did not, could not, have foreseen the evolution of American society from an agrarian, loosely connected conglomeration of isolated communities into an industrial and military world power. Hence, they created a federal system in which almost all power was retained by the states, including the power to restrict the civil liberties of all resident’s within their respective borders if they so chose.

The question now is how or by what mechanism have we reached a point in our constitutional history when most of the restrictive state laws and constitutions no longer have effect? Did we suddenly become enlightened and eliminate them? No. The laws and discriminatory portions of state constitutions were invalidated one by one by the U.S. Supreme Court under a concept called the Nationalization of the Bill of Rights or sometimes the Selective Nationalization of the Bill of Rights.

Some examples will serve to illustrate the snail’s pace at which fundamental rights became available to citizens by Supreme Court rulings rather than through state legislative action.

• 1927 Freedom of speech
• 1931 Freedom of the press
• 1934 Freedom of religion
• 1958 Freedom of Association
• 1965 Right to privacy

Some have characterized the Supreme Court’s actions as interference in state’s rights. Others have used terms such as “activist judges” who “legislate from the bench.” The legal terminology is Judicial Review, a practice originating with the Marshall Court in which federal courts may under some circumstances review state actions for constitutionality. Almost all cases involving civil rights were taken to the U.S. Supreme Court because state legislatures and state courts failed to provide relief through the political process.

In one well-known case, Brown v. Board of Education, the Supreme Court invalidated the 50-year old practice of separate but equal facilities under which many states prevented the integration of the races in schools. Subsequent to this ruling, President Eisenhower used federal troops to integrate Central High School in Little Rock, Arkansas.

There followed a number of school integration clashes in the South, notably one in which the governor of Alabama, George Wallace, vowed “I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say, segregation now, segregation tomorrow, segregation forever.”

This archaic attitude exemplifies the philosophy of those who wish to roll back the Constitutional clock.

Notes:

1. The rationale for the Nationalization of the Bill of Rights is frequently said to be based on the 14^th Amendment to the Constitution, which reads in part, “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.
   
2. I wrote this essay several years ago. Some progress has been made in the arenas of civil and political rights, but social progress remains problematic. Archaic attitudes are alive and well.