The Liberal Evolution of Due Process (Part VI)

Some will argue that the Frankfurter “fair trial” approach was also flawed. First, his holding of “nonsuperfluousness” (due process meanings in the Fifth and Fourteenth Amendments were identical) no longer held since the Court had already applied the First Amendment to the states. The Second argument against Frankfurter theories about protecting state federalism is that in Gideon 23 states wrote briefs to apply the Sixth Amendment to the states and only two states asked for it to be denied. This would seem to show that states wanted the Bill of the Rights applied to the states. The final argument was that the fair trial approach had no guidelines to follow. So was Frankfurter’s thinking flawed? First, Frankfurter’s theories were not nearly as flawed as Black’s. By 1947 the First Amendment was applicable to the states but the Court never applied any theory or explanation how that conclusion was reached. How could Frankfurter offer an exception to the “nonsuperfluousness” theory when no one could give him a reason for it? In 1937 Justice Cardozo stated in the majority decision for Palko that criminal procedure provisions of the Bill of Rights were not “of the very essence of a scheme of ordered liberty”. This may suggest that Cardozo on the other hand felt that the First Amendment was of the very essence of a scheme of ordered liberty. Or how James Madison wanted to hold three things to the states in an amendment: Right of conscience, press, and trial jury (2 out 3 suggest First Amendment freedoms over criminal procedure). This may be Frankfurter’s argument: The rights of the First Amendment were necessary to be applied to the states for liberty. Secondly, The federalism argument is an easy one to explain away. States were more advanced than the federal government criminal procedures. In fact, Supreme Court Bill of Rights nationalization decisions, in many cases, completely wiped off the books more stringent state laws and statutes. Finally, the “Fair Trial” system set boundaries such as “shocks the conscience” in Rachin. This is not much different than the liberal substantive due process decision held by the Court in Schenck v. United States when Justice Oliver Wendell Holmes denied free speech in the case citing “clear and present danger”. The Frankfurter method did not legislate from the bench; it did not free dangerous criminals; it did not have unlimited boundaries using substantive due process; it did make social rulings based on no evidence; it did not have an agenda; and it was supported by some clear theories (nonsuperfluousness) as opposed to none for the selective nationalization of the Bill of Rights.

To further understand how the liberal agenda works consider the Second Amendment case D.C. v. Heller decided in 2010. Liberals created all this precedent under the Warren Court that the Bill of Rights applies to the states. However, in Heller, the liberals of the Court voted against applying the Second Amendment rights to the states. Why? Because they do not like guns and want states to enforce gun control. Heller won by a narrow 5-4 decision to apply the Second Amendment to the states. Of course, maybe liberals are confused. In a presidential debate, Hillary Clinton, stated rejecting Heller was about keeping guns out of the hands of children. Heller was not about that, it was about whether gun rights in the Second Amendment applied to the states. Liberals have a way of introducing imaginary information into a case such as substantive due process. Liberals have no issue freeing guilty violent criminals with their decisions, but all the sudden they grow a conscience for gun rights. That is not how it works. The Citizens United case is another classic example of liberal hypocrisy. In this First Amendment case the court ruled that corporations, individuals, organizations, and groups can donate as much money to elections as they want based on the freedom of speech. In the past there was a cap or limit to campaign contributions. Liberals argue that corporations are not people and that money is not free speech. However, liberals helped push the precedent that corporations are people and applying the Bill of Rights not only to the states, but to show that the right of free speech includes freedom of expression starting with Stromberg and to further include cases such as flag burning. And money is used to express a person’s free speech more than anything on the planet to buy gifts and things people like.

The most damning evidence against incorporation of the Bill of Rights to the states is the history of the Bill of Rights. First, Frankfurter is right, if the framers of the Fourteenth Amendment wanted the Bill of Rights to apply to the states, they had a really bad way of saying it. In Federalist 84 Hamilton argues against a Bill of Rights: A bill of rights is not needed for the Constitution since many individual and state rights are built into the Constitution such as not allowing a suspension of a writ of habeas corpus. Besides, Hamilton argues that by adding a bill of rights “they would contain various exceptions to powers not granted”. “Why declare that things shall not be done which is no power to do?” Hamilton further argues in Federalist 83 that many individual rights are already included in state constitutions and law such as trial by jury. He claims there is no trial by jury in the Constitution since each state has varying and unique interpretations on the subject such as some states allow trial by jury for criminal cases but not for civil ones and vice versa. State individual rights and laws were fair because they did not want what England did to them to ever occur again. In most cases, state rights were more stringent than the federal Bill of Rights.

I am not completely opposed to applying the Bill of Rights to the states, however it is never enough when it comes to liberal interpretations and they do not stop there. Once the Bill of Rights applied to the states they continued with new personal interpretations of the law using what is called substantive due process to make up new rights. That is what I disagree with.