Does the US Supreme Court have the power to veto State Laws involving our most fundamental rights?

Posted on May 24, 2011

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The Myth

The Fourteenth Amendment gives the Supreme Court the power to strike down any State Law that it feels violates the Bill of Rights ot the US Constitution.

The Truth

The Bill of Rights of the US Constitution was never meant to the apply to the Sates. The Bill of Rights only limits the Federal Government from placing restrictions on our most basic rights. This may seem a controversial statement but at some level the decision must be made where an exercise of our rights becomes an abuse of our rights. Would you rather have these decisions made on the local and State level or the Federal level?  Our Founding Fathers knew it would be an absolute disaster if these decisions were made at the Federal Level so they added the Bill of Rights to the Constitution to deny this power to the Federal Government.

The freedom of religion is a fundamental inalienable right but it is not an absolute right. Human sacrifice, incest, and polygamy are religious practices but are harmful therefore there must be laws preventing them at some level. Up until 1947 all decisions involving the freedom of religion were made at the State and local level only. In 1947 the First Amendment was extended to the State and local level when the US Supreme Court seized this power by striking down State and local laws and established the unconstitutional doctrine of separation of church and state. Did we have greater religious freedom when these decisions were made at the State/local level or now that they are made at the Federal level?

The Facts

Rights, such as freedom of speech, are Natural Rights. They are given to us by God, not the government.  What governments give us they can easily take back. Our rights are not given to us by the Constitution because constitutions can be changed or disregarded by the government.

  Our Natural Rights are not absolute. We have the freedom to exercise them as long as we do not harm others or interfere with their rights. When we harm others or interfere with the rights of others the government has the moral authority to stop us and to punish us for those transgressions.

 The legislature of the government at some level must write laws that define the line between individuals exercising their rights and abusing them. This is a very delicate balance that is subject to abuse. Our founding fathers knew these delicate decisions must be made at the most local level possible. The more local a governing body is the easier it is for the people to keep a watchful eye on it. It is also easier for the people to keep a local government under tight control and deal with it when it becomes abusive. The Federal level is the absolute worst level to decide where this line should be drawn.

 Like the Constitution, The Bill of rights does not grant us our rights. It protects our rights by denying the US Congress the power to pass laws affecting our Natural Rights in any way. The framers of the Constitution left these decisions in the hands of the States. In the case of freedom of speech, the States retained the power to determine where free speech becomes an abuse of free speech but the Federal Government is denied that power by the Bill of Rights.  If the States get it wrong and limit free speech instead of punishing abuses of free speech the framers of the Constitution and the Bill of Rights believed the people could fix these errors more easily.

 Leaving all decisions involving our Natural Rights in the hands of the State does mean each State could have a different standard for determining where exercising rights becomes an abuse of rights. This is exactly what the founding fathers wanted. They believed this was far superior to having a uniform national standard for these determinations. If these decisions were made at the federal level the federal government would wield too much power and it would be far more difficult for the people to fix abuses.

 After thc Civil War the former Confederate States denied the most basic rights to the newly freed slaves. The Fourteenth Amendment was added to the Constitution to force these States to recognize the rights of the former slaves. That was the only purpose of Fourteenth Amendment. The writers never intended that this amendment would give the Supreme Court the authority to extend the Bill of Rights to the State level. From 1868, when the amendment was ratified, until the Supreme Court decision of Everson v Board of Education in 1947 there was no attempt to couple the Fourteenth Amendment to the Bill of Rights. The Everson case is also notable because it was the first time the Supreme Court applied the unconstitutional doctrine of separation of church and state. This case was the first time the Supreme Court extended the Bill of Rights to the State and local level   From 1791 when the Bill of Rights was ratified until 1947 the Bill of Rights was applied to the Federal level only.

Extending the Bill of Rights to the State and local level has had disastrous results for this Country. In 1973 the Supreme Court struck down a State law banning abortion. Because of the Roe V Wade decision no State can ban abortions. The Supreme Court should not have even taken the case. The Constitution does not give the Supreme or any part of the Federal government the power to allow or prevent States from banning abortions. If you want abortions stopped think of how much easier it would be to ban them at the State level. If you are unsuccessful at banning them and you do not want to live in a State were abortions are legal you can move to a State where they are illegal.

The Proof

For the first item of proof I will offer is a hypothetical example. Freedom of speech is a fundamental inalienable right but suppose a person stood just outside of your house, on the sidewalk, and shouted threats at you as loud as he could late at night. He is abusing his freedom of speech. The local community has the right to pass laws that prevent him from disturbing your sleep and threatening you. The State has the right to pass laws preventing someone from threatening you. The State also has the power to allow you to get a restraining order against that person if he keeps up that behavior. It is reasonable for these kinds of decisions that limit freedom of speech to be made at the local and State level.  It is not reasonable, and unconstitutional, for the Federal Government to label certain forms of speech hate speech and punish you for it. The current administration has tried labeling political speech it does not agree with hate speech in order to stifle debate.

 At the start of the Constitutional Convention James Madison, George Washington, and Edmund Rudolph offered the Virginia Plan. A provision in that plan gave the US Congress veto power over State laws. This provision was soundly defeated and there was much discussion offered against it. The discussion was recorded by James Madison who was the official scribe for the convention. His notes were published and are readily available today.

When Congress debated the Bill of Rights, the idea of extending the Bill of Rights to the State level was discussed. This idea was defeated.  The debates were recorded and they were published.

Thomas Jefferson and James were both prolific writers and both discussed these topics extensively Their writings were preserved and published in many different books.

 When the Fourteenth Amendment was debated in congress the record was also kept and published. The idea of this amendment extending the Bill of Rights to the State level was discussed and was dismissed.

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