Tenth Amendment Center: Charlottesville: Blame the Incorporation Doctrine
There was plenty of blame and finger-pointing in the aftermath of the Charlottesville protests. One woman died and at least 33 people suffered injuries when right-wing and left-wing groups clashed during the Unite the Right Rally. Two state troopers also died when their helicopter crashed during police response to the melee.
Analysts have focused on white nationalist groups, Antifa, police response and city officials, but one major player who had a hand in the way events unfolded has largely flown under the radar – the federal government – specifically U.S. District Judge Glen Conrad.
Conrad issued the injunction overruling the city’s decision to move the rally from Emancipation Park to McIntire park. The city cited safety and security concerns when it made the decision to grant a permit for the event only if organizers moved the location to the larger park outside of downtown.
City Manager Maurice Jones read a prepared statement on the Monday before the rally.
“Based on information provided to me by law enforcement officials, the city has decided to approve Mr. Kessler’s application for a permit to hold a demonstration on the day and at the times requested, provided that he use McIntire Park, rather than Emancipation Park, for the demonstration. There is no doubt that Mr. Kessler has a First Amendment right to hold a demonstration and to express his views. Nor is there any doubt that we, as a city, have an obligation to protect those rights, the people who seek to exercise them and the broader community in which they do. We have determined that we cannot do all of these things effectively if the demonstration is held in Emancipation Park.”
The Rutherford Institute and the ACLU filed an injunction in federal court arguing the city’s decision to move the rally violated Unite the Right organizer Jason Kessler’s free speech rights.
Conrad agreed, granting the injunction, effectively nullifying the will of local officials. He wrote:
“Under the First Amendment, made applicable to the states through the Fourteenth Amendment, ‘a municipal government . . . has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Content-based restrictions-those that target speech based on its content- ‘are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.’ Reed v. Town of Gilbert, 135 S. Ct. 2218,2226 (2015).”
We can’t really blame the judge. He was merely following the incorporation doctrine – a dubious legal principle that applies the First Amendment and other provisions of the Bill of Rights to the states.
As ratified, the First Amendment was never intended to bind the actions of state governments. That’s clear in the wording of the amendment – “Congress shall make no law…”
In fact, none of the first 10 amendments were meant to apply to state governments. There exists no founding era evidence that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind the states. In fact, doing so would essentially create a federal veto over state laws, a massive expansion of central government authority – the exact opposite of the stated purpose of including a bill of rights in the Constitution.
The preamble makes the purpose of the Bill of Rights very clear.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the general government created by the document. Notice the word government is not plural. The Bill of Rights makes no mention of state governments. In fact, the state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.
So, how did the federal courts end up applying the First Amendment to stop the action of a local city government in Virginia?
Through the 14th Amendment and the “incorporation doctrine,” a legal principle that holds the amendment “applies’ the Bill of Rights to the states as well as the federal government.
It wasn’t until 1925, some 57 years after ratification, that the Supreme Court fully-formulated the concept of incorporation in the 14th Amendment through the due process clause.
As late as 1922, the Supreme Court held that the Constitution “imposed upon the states no obligation to confer upon those within their jurisdiction…the right of free speech.” Then magically, in the 1925 case Gitlow v. New York, the Supreme Court “assumed that freedom of speech and the press – which are protected by the First Amendment from abridgement 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…” [Emphasis added]
Voila, incorporation was born.
Incorporation remains a contentious legal issue today. The best scholarship on the original intent of the 14th Amendment doesn’t support the doctrine, although some legal scholars make reasonable arguments for it.
But setting aside the legal debate, we vividly saw the problem with federal intervention in a local issue in the way Charlottesville played out. A federal judge simply overruled elected representatives who were in the best position to make decisions about a local matter. They believed public safety warranted moving Kessler’s rally to another location, and it appears they tried to balance his free speech rights with their concerns about violence. As it turns out, they were clearly correct in their assessment. Had the federal judge not intervened and insisted the rally must go on in Emancipation Park, perhaps three lives would not have been lost.
Some will argue that without federal protection, states will trample our rights. But a mechanism exists to protect freedom of speech and assembly at the state level. The Virginia constitution has a bill of rights. Article 1 Section 12 addresses free speech.
“That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.”
Kessler could have sued in state court. Perhaps the outcome would have been the same. Or maybe a state judge would have deferred to the wisdom of local elected officials and allowed the city to move the rally. Maybe a state judge would have found moving the speech to a new location didn’t substantially burden Kessler’s rights when balanced with the public safety hazard. Or something else.
We’ll never know.
But the point is local judges and officials are generally better equipped to evaluate local situations and apply the law in a way that represents the will of that particular political society than a politically appointed federal lawyer beholden legal precedents that often evolved in vastly different political and cultural settings.
The problem with incorporation is that it centralizes power and authority in federal courts, and vests federal judges with power they were never intended to wield. During the drafting of the Constitution, James Madison suggested a federal veto on state laws. The idea was soundly rejected. The founding generation did not want the federal government controlling things at the local level. The incorporation doctrine effectively gives the federal government that kind of veto power over not only state, but even local decision-making.
The end-result of the incorporation doctrine is monopolization of government at the federal level. This seldom works out well. One-size-fits-all solutions don’t exist. Local people should make decisions on local issues. Centralization of power seldom ends well, as Charlottesville vividly illustrates in retrospect.
Mike Maharrey
September 21, 2017 at 11:21AM
