In this week’s episode we cover the short-term setback for the 2nd Amendment Preservation Act in Missouri. Learn about a rare Third Amendment case in Nevada. And more evidence that our message is going mainstream. Plus, we talk about exactly why the decentralization message is so imperative today.
Host: Michael Boldin.
Content Production: Mike Maharrey
Conservatives and liberals alike love turning the federal courts into a liberty enforcement squad because it allows one stop shopping as they jockey to define our rights.
What do I mean by liberty enforcement squad?
Well, the Third Amendment case we discussed earlier provides the perfect example. Some agent of a state or local government violates our rights, and we immediately run to the federal courts, hoping the federal judges will step in and make the state or local agency fall back in line. Civil libertarians go to the feds hoping they will limit the powers of state and local police. Conservatives scream Second Amendment the moment a state passes a restrictive gun law.
Believe me, I sympathize with both causes! But here’s the problem: the Bill of Rights was never intended to operate on the states. This wasn’t even debatable prior to ratification of the 14th Amendment. Everybody understood the first 10 amendments further clarify the limits of federal power. State constitutions and their declarations of rights defined and restricted state powers. All that changed when the Supreme Court invented a new understanding of the 14th out of thin air more than 50 years after its ratification. Suddenly, the justices discovered that it binds the states to the Bill of Rights.
It’s called the incorporation doctrine and it obliterates the original structure of our constitutional system.
We could have a long technical discussion about the intent of the 14th, but let’s set that aside and focus on the more basic question: do we WANT the federal government to serve as a liberty enforcement squad?
In doing so, well-intentioned Americans centralize the system and unwittingly jeopardize the very freedoms they intend to protect.
By turning to federal courts, Americans ultimately empower nine federal employees to define the extent of their freedom. And when the federal courts decide the issue, that decision doesn’t just bind one county or state. If you are going to play by their rules – and by making that your game, you pretty much have too – their decision extends to all 350 million-plus Americans.
IF the judges happen to issue the “right” opinion, things move along nicely. But how often do federal judges actually rule in a way that preserves individual liberty?
Take the recent Maryland case involving DNA seizure upon arrest. The Court decided swabbing is A-OK. Now that low standard applies to police all over the U.S.of A. That case should have been decided in Maryland state courts under its Declaration of Rights – which also forbids unreasonable searches. Sure, the Maryland court might have come up with the same crappy opinion, but it least it would have only applied to Marylanders.
Look: it’s not that we trust state governments. We don’t trust ANY government. But decentralization is much more friendly to liberty than a D.C. power monopoly. And we know we can exercise a little bit more control over state governments.
Nobody wants to get attacked by a dog, right? But if you are going to have a dog attack you, wouldn’t you rather it be a six pound chihuahua as opposed to a 90-pound rottweiler? It’s not that a chihuahua can’t do some damage. But it probably won’t kill you, and you are a whole lot more likely to fight it off.
State governments are like chihuahuas. That can cause real problems, but WE can control them with a little work. We’ve SEEN grassroots pressure have real impact at the state level. But we seldom apply the necessary pressure because we’re wasting all of our time shouting across the Potomac.
I understand the temptation to hold up the Bill of Rights and demand the federal courts force the states into compliance. Sure, we MIGHT win some protection for gun rights at the federal level. We MIGHT win some restrictions on police powers. We MIGHT win some privacy rights. But more often than not, we end up with diminished rights “incorporated” across the entire country. And in the process, we’ve further centralized power in D.C.
The only hope for liberty lies in decentralizing our system. That will never happen as long as we insist on making the feds our liberty enforcement squad. We merely empower them, to our detriment.
Those who fight for liberty risk losing the war as they clamor for a chance to win the occasional battle. We MUST resist the temptation to run and grovel at the feet of federal employees in Washington D.C. every time some state or local functionary tramples our rights.