Dispatches from the Culture Wars

I've mentioned before being on the Worldview Weekend mailing list. This is basically a group of religious right types who meet, appropriately, in Branson fairly regularly. They send me a list of articles on their website every week and it's typically a source of much amusement. No group that features the deep thoughts of Kirk Cameron can possibly fail to entertain. My favorite of the new batch is this essay by Steven Voight on the 14th amendment, wherein he promises to reveal "startling" research that will overturn "decades of legal assumptions" about the doctrine of incorporation. If only that were true.

Voight, who actually puts "Esquire" after his name on his website, says he is an attorney with a "premier law firm". After reading this silly essay, one could reasonably doubt that. The chuckles begin with the first few paragraphs of his essay:

For the past two months, five 140-year-old books have enjoyed a prominent space on one of my shelves. These ancient books hold the Congressional floor debates from 1866--the year that Congress introduced and debated the Fourteenth Amendment.

I purchased these transcripts and their awe-inspiring content from a distributor of antique books for what I consider to be a tremendous bargain. Then again, considering the pristine condition of the parchment-like, fragile pages, the tomes have plainly not enjoyed much demand. Likely, over the years, only an occasional bespectacled history professor has turned the brittle pages. For the most part, these books have just sat on a shelf and collected dust.

This will change. These records hold nation-changing answers--apparent but as yet untold, despite the passage of many ages--to decades of dispute over the "incorporation doctrine" which stems from the Fourteenth Amendment. If illuminated from parchment to the people, the original intent of the drafters of the Fourteenth Amendment will challenge--and change--years of legal assumptions about the doctrine of incorporation that have been chiseled into the legal worldview of every law student, brought to bear in thousands of legal briefs and arguments, and ultimately cemented into jurisprudence by judges and lawyers who either accept the doctrine as solid law or otherwise embrace it as judicial gospel capable of curing myriad social ills...I challenge and call for students, historians, scholars, teachers, lawyers, and judges to objectively dig through these ancient transcripts.

It sounds as though he thinks he's found an ancient map to hidden treasure. I don't know how to break this to him, but the legislative debates over the 14th amendment were published in the Congressional Globe and widely distributed. They're available in full on many different webpages, including the Library of Congress and the WUSTL libraries page. You didn't find a priceless antique at a garage sale, Mr. Voigt, you found a source of material well known to pretty much any legal scholar in the nation. I can't imagine that there's a legal scholar anywhere in the US who has written about the 14th amendment that hasn't read these "ancient transcripts". Hell, I've read them just to write a few blog posts on the subject.

He goes on to note the history of the Courts incorporating provisions of the first 8 amendments to the Constitution against state actions, listing a couple dozen cases from throughout the 20th century, all of which he apparently thinks are constitutionally dubious. And then he offers us this amazing insight into the doctrine of incorporation based upon his diligent reading of these hitherto-unread manuscripts:

During my study of the transcripts of the Congressional debates, I discovered, to my astonishment, that two well-settled legal maxims related to the doctrine of incorporation are incorrect. Congress intended that the privileges and immunities clause would serve as the mechanism for incorporation.

The first, and lesser, observation from my review of the Congressional Record is that Congress clearly intended that the privileges and immunities clause--and not the due process clause as the Supreme Court has held--would serve as the mechanism for incorporation.

As I read this breathless pronouncement I could only think to myself, "Really? You thought of that all by yourself, did ya?" You see, this "astonishing" insight that hit him like a ton of bricks while reading the Congressional debates on the 14th amendment is actually a rather mundane fact well known to pretty much any second year law student. Hell, it was well known to me and I've never been to law school.

He didn't need to buy those magical books from the antique book purveyor to gleen that information, he could have gotten it by reading any of a few hundred popular books on con law, or even from reading my blog. "Startling" legal research, indeed. He then offers his second bit of astonishing insight:

The Fourteenth Amendment empowers Congress, not the Supreme Court, to incorporate fundamental protections.

While my discovery about the privileges and immunities clause was big, my second discovery was even more shocking and sent my legal senses reeling. Working my way through the transcripts of Congressional debates, I found that Congress intended for the Fourteenth Amendment to enable Congress--not the Supreme Court--to incorporate privileges and immunities.

Apparently, until he purchased these magic books he'd never bothered to read the 14th amendment itself, which does in fact state explicitly that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." How shocking! Except, of course, that it's not the least bit shocking. Such language is not unusual in Constitutional amendments. Similar language is found in the 13th, 14th, 15th, 18th, 19th, 23rd, 24th, and 26th amendments. Where Voigt is wrong is in thinking that because the text gives Congress the authority to enforce the text of the amendment that it rules out judicial enforcement. This is simply false.

One need only think about the limits on the authority of the different branches of government in the Constitution to understand why it's false. Why would it be necessary to give to Congress the authority, for example, to enforce the 18 year old voting age as in the 26th amendment? Because the Constitution did not give such authority to Congress in the first place, it left the qualifications for voting up to each individual state.

But does this granting of authority to Congress mean that the courts are forbidden from enforcing the provisions of the Constitution? Of course not. That is what the courts were intended to do in the first place. The 14th amendment, once ratified, became a part of the Constitution itself and therefore its prohibitions became judicially enforcable. As Hamilton noted in Federalist 78, the Supreme Court is the branch "whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

When the 14th amendment says that "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", those are legal prohibitions that are judicially enforcable. Yes, Congress also has the authority to pass appropriate legislation to enforce those provisions, but to deny that the courts may enforce them is to carve out an unjustified exception to the judicial review authority of the courts.

A quick perusal of his website shows that this isn't the only issue on which he appears clueless. In this essay on the Dover trial he claims to have a degree in biology while also claiming that speciation has never been observed. He even cites "archaeologist Carl Baugh" and says idiotic things like, "Scientists now conclude that most of the ape-like fossils which were once viewed as pre-cursors to man are nothing more than extinct ape species." Brilliant, Steven Voight, "Esquire".