A Summary of: The Politically Incorrect Guide™ to the Constitution
by Kevin R.C. Gutzman
Compiled and Edited by
Dr. Jimmy T. (Gunny) LaBaume
Chapter 11: The Court on Pornography, Crime, and Race
In West Virginia State Board of Education v. Barnette (1943), the Court said that forcing children to salute the flag and say the Pledge of Allegiance violated their freedom of thought. No historical evidence or specific clause of the 1st Amendment was cited to support this claim.
The “inarticulate roars” of the Court
Using similar extra-constitutional logic in Tinker v. Des Moines (1969), the Court invalidated a school dress code that prohibited armbands. Then, in 1989 it evoked its invented right of “freedom of expression” in Texas v. Johnson (1989) (aka the Flag-burning Case).
What the Court simply failed to recognize was the fact that the 1st Amendment left such issues as these to the states. None of the Justices (including Rehnquist in his dissent) offered this (correct) argument. No one argued that the Incorporation Doctrine was wrong or that burning a flag was not “speaking.” Instead, Rehnquist said that flag burning was “no more expressive than an inarticulate grunt or roar.”
It can’t be said better than Gutzman said it himself. “If inarticulate roars could be banned, we wouldn’t be reading many Supreme Court opinions.”
Freedom of pornography
It is not self-evident that the print media is the same as the broadcast media or that the ratifiers intended to prevent state and local governments from banning indecent material. But, in Wilkinson v. Jones (1987) the court protected such “speech” on cable TV.
Rather than leaving the regulation of pornography to the state and local governments, the Court has declared itself the sole judge of its legality and morality. It all started with Roth v. United States (1957) when the Court declared the test for obscenity to be “whether the average person, applying contemporary community standards”…considered the material obscene. Logically, these words cannot mean what they say. If the issue is “community standards” then why should state and local statutes be reviewed by nine Washington, DC lawyers?
In Stanley v. Georgia (1969), the Court overturned a conviction for the “possession of obscene materials.” However, it failed to explain which clause of the Constitution protected “private possession of obscene materials.” The opinion was not founded on anything that might be called “legal reasoning.” It amounted to nothing but a naked assertion of judicial power.
In Miller v. California (1973) Chief Justice Warren Burger announced new guidelines for regulation of “obscene material.” By his definition, this was material that had no “serious literary, artistic, political or scientific value.” Shucks, we don’t need elections as long as a law degree and a judicial appointment qualifies someone as an expert in “serious literary, artistic, political, or scientific value.”
In City of Erie v. Pap’s A.M. (2000) involved a city ordinance aimed at nude dancing. The Court ruled that nude dancing is protected (though not absolutely) by the 1st Amendment.
The Court has also decided that the public has a 1st Amendment right to attend criminal trials. Somehow the Press Clause not only covers the right to publish but also extends to a fancied right to attend. In Globe Newspaper Company v. Superior Court for the County of Norfolk (1982), Justice Brenan conceded that a state might wish to exclude the press and general public from a trial involving a minor victim of a sex crime. But, the 1st Amendment overruled such an interest.
The Supremes and criminal law
Miranda v. Arizona (1966) established the rule that a suspect may not be questioned without first being informed of his rights. This was yet another case where the courts unconstitutionally arrogated power to the federal government that originally had been intentionally reserved to the states.
Gideon v. Wainwright (1963) and Douglas v. California (1963) established the new requirement that indigent criminals be given counsel at the public’s expense. Supposedly this was somehow contained in the Due Process Clause which, apparently, no one had understood for 95 years.
Mapp v. Ohio (1961) held that state courts must exclude the fruit of illegal searches. Thus the public was to pay the price for police errors and misbehaviors to the benefit of criminals.
Cruel and unusual punishment
1954 through 1969 was the golden age of judicial legislation. Constitutional law was remade in the image of the liberal intellectual. What has been the basis for the federal courts remaking of criminal law over the past decades?
Sandra Day O’Connor wrote in Hudson v. McMillian (1992) that the court should not only apply the law but also the “evolving standards of decency that mark the progress of a maturing society.” Translation: If the Court’s opinion differed from an elected state government’s, it is because their (the Court’s) “standards of decency” were more highly “evolved.”
The most often heard reverberations of this “standards of decency” language are in cases involving capital punishment. In fact, the determination by Justices Brennan, Marshall, and Blackmun that capital punishment always violated the 8th Amendment ban on cruel and unusual punishment was based on the idea of “evolving standards of decency.” Apparently they did not believe that Americans, as a whole, were as evolutionary advanced as they were.
Brown v. Board of Education and its offspring
Historical fact: The 14th Amendment’s Equal Protection Clause was not intended to end public school segregation. But, the Court said that it was and the liberal intellectuals loved the decision because they knew that such a constitutional amendment would never make it through the process.
Actually, the Courts first segregation case was Missouri ex rel. Gains v. Canada (1938). It ruled that Missouri had to provide blacks the same opportunities to attend law school that it provided whites.
Next, in Shelley v. Kraemer (1948) the issue was a restrictive covenant among neighbors that none of them would sell his home to a non-white. In other words, the Court intervened in a private contract freely entered into among neighbors—the law involved was simply the law of private contracts. However, according to the Court, a state was in violation of the 14th Amendment if it enforced a private agreement that discriminated against non-whites.
By this standard, wills, donations to scholarship funds, etc that favored people by race, sex, religion, ethnic background, national origin or myriad other classifications would not be enforceable. But, true to form, the Court intended its reasoning to be applied only to restrictive covenants because they did not like restrictive covenants.
Then in 1950 the Court decided in Sweatt v. Painter that Texas could not require black law students to attend a different state law school from whites. When it came to legal education, “separate but equal” was impossible and so separation was unconstitutional.
Then in Brown v. Board of Education (1954) the Court offered up a “new law for a new day.” Public school segregation would be unconstitutional for ever more. The Court based its holding on “modern authority”—i.e. Kenneth Clark’s doll experiments that had shown that, when black children were given a choice between a black doll and a white doll, many from segregated schools chose the white doll. Clark testified that this was the effect of segregation having caused “confusion in individuals…about themselves.”
However, it didn’t seem to matter to the Court that Clark ‘s data also showed that black kids from un-segregated schools were more likely to prefer the white dolls than those from segregated schools. Besides that, the Constitution does not say anything about a “doll test.”
The Court decided in Bolling v. Sharpe that the 5th Amendment’s Due Process Clause banned segregation of public schools in the District of Columbia. This was not a tenable reading of either the 5th or the 14th Amendments. In fact, it was the Congress that wrote the 14th Amendment that segregated the schools in Washington, DC.
In Brown , the Court said that it could not be bound by the 1868 understanding—which essentially means “by the constitution”—nor did it have to respect laws made by the state’s legislatures. In short, nothing bound it except the personal policy preferences of nine judges.
Also in Brown the Court said that schools must be desegregated “with all deliberate speed.” However, the case had almost no effect in the Deep South. Racial segregation in the South only ended with the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
In Cooper v. Aaron (1958), the Court declared itself the final arbiter of all things constitutional. To do this, it relied on Marshall’s claim in Marbury v. Madison (1803) that the Supremacy Clause of the Constitution made the Court’s “constitutional law” the “supreme law of the land” right along with the constitution. It would not be long until the Court implemented a wide-ranging revolution in American government.
The civil rights legislation of the 1960s
The constitutionality of the Civil Rights Act of 1964 was in question. No small reason for that is the fact that the Court had ruled that the almost identical Civil Rights Act of 1875 was unconstitutional. But there was no intent on the justices’ part to be bound by history. Instead, they went into the business of giving America a “new law for a new day.”
In Heart of Atlanta Motel, Inc. v. United States (1964) the motel owner said that he could not be compelled to open his motel to blacks because it would violate his private property rights and the 13th Amendment. The government’s telling him what he could do with his property amounted to forcing him into involuntary servitude. He also denied that renting a room was “interstate commerce.”
But, the Court held that the Civil Rights Act was valid under the Commerce Clause, even though regulating interstate commerce had not been its intent. In short, the Court said that Congress’s powers under the Clause were virtually unlimited. This was a momentous curtailment of traditional property rights.
Also in 1964, the Court upheld the Civil Rights Act with respect to restaurants in Katzenbach v. McClung.
The message to Congress was that it (like the Court itself) could do whatever it decided to do under the guise of regulating commerce. The Court is no longer a protector of the Constitution. It is now “a relentless agent of an ever more powerful and unrestrained federal government.
The Essence of Liberty Volume I: Liberty and History chronicles the rise and fall of the noble experiment with constitutionally limited government. It features the ideas and opinions of some of the world’s foremost contemporary constitutional scholars. This is history that you were not taught at the mandatory government propaganda camps otherwise known as “public schools.” You will gain a clear understanding of how America’s decline and decay is really nothing new and how it began almost immediately with the constitution. Available in both paperback and Kindle versions.
You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume II: The Economics of Liberty and The Essence of Liberty Volume III: Liberty: A Universal Political Ethic.