I started writing this a few months ago in response to an ill-conceived bill in North Carolina to establish Christianity as the official state religion. Bill supporters assert that the First Amendment only restricts Congress from establishing a religion, so they could do what they want.
Legal or not, HJR 494 was a terrible idea that threatened the already shaky legitimacy of state sovereignty. Luckily, the resolution was dead on arrival and the state legislature will not vote on it. Nonetheless, this instance presents a unique opportunity to discuss the issue of state’s rights in a modern context. Seeing a good debate on the 14th Amendment on FEE.org for Constitution Day, I decided to finish this post.
It was not unheard of in the first half of the 19th century for a state to have an official religion. The states were not required to follow restrictions that pertained only to the federal government, including the Bill of Rights. Many states had restrictions on free speech, free exercise of religion, and more. It was not until the 14th Amendment that State governments had any obligation to incorporate the Bill of Rights. With the 14th Amendment, the constitution says that states could no longer “make or enforce any law which shall abridge the privileges or immunities of citizens of the Untied States.” In 1868, the Federal government had more authority to overturn state laws that violated individual rights protected in the Constitution. The 14th Amendment helped to protect the individual liberty of the freed slaves from State and Local governments in the aftermath of the Civil War, but continues to impact us today. For example, 14th Amendment incorporation brought individual liberty advocates the pro 2nd Amendment ruling in McDonald v. Chicago.
However, the 14th does not eliminate the issue of state sovereignty nor does it settle the matter of nullification. Nullification is simply an end run around the Supreme Court to declare laws unconstitutional. The American people need not depend upon the federal government or courts as the only source to determine whether the government is overstepping constitutional authority. By itself, it is neither good nor bad. The authors of the NC bill were partially right. Before Maubury v. Madison introduced the concept of judicial review, the Virginia and Kentucky Resolutions nullified the unconstitutional Alien and Sedition acts because it was the most sensible form of resistance against an egregious violation of 1st Amendment rights. Northern states nullified the fugitive slave laws around the same time that the Supreme Court made the Dredd Scott v. Sanford decision. States and localities today are refusing to comply with unconstitutional provisions of the NDAA, condemning the use of drones, and nullifying federal drug laws. Nullification can be a means for states to stand up to centralized injustice.
Are incorporation and nullification reconcilable? Perhaps. Many advocates of state sovereignty reject incorporation theory because it gives the federal government the power to violate that sovereignty in certain instances. Acknowledging federal authority only invites further intrusion. They argue if a state is violating individual rights, then the people need to impose limits on power through the state constitution. Sure, I agree . We should most definitely do that.
However, if the 14th Amendment is reducing the power of state governments and elevating individual liberty, then what does it matter? If the Supreme Court wants to limit Illinois’s ability to restrict 2nd Amendment rights, why would advocates of liberty take issue? Yes, as always, we should watch for Federal overreach but localized tyranny is hardly a desirable. If confirmation of our inalienable rights comes from the Supreme Court, so be it. If it has to come from State nullification, I’ll allow it. Maybe we even need non-compliance at the local level as so many counties in New York State have done in response to the New York Safe Act (Including Monroe County, sort of). In the United States, it’s not the Federal or State governments, but the individual that is sovereign. The point is that someone stands up for our Constitutional rights when they’re in danger from any government.
With that in mind, I accept the validity of state nullification and recognize how the 14th Amendment advances liberty.
P.S. I realize I did not address civil rights violations from non-state actors in this post, a hot-button topic often lumped in the same category as state’s rights. This is a whole new can of worms that I promise I’ll get to later!
For Further Education!
For more on this debate, Rand Paul had something to say about the 14th Amendment at Howard University a few months back that distinguishes him from his father, Ron Paul.
The Foundation for Economic Education has a good debate on this issue for Constitution Day (surprisingly most people seem to be coming down on the Pro-Incorporation side).
For a really great education on nullification issues and a really hardline anti-incorporation/anti-14th Amendment stance, check out the Tenth Amendment Center.