On 23 February 2005, The Council of Supreme Prophets (a.k.a., The United States Supreme Court) in Johnson v. California et al, (posted here) decided that "[t]he California Department of Corrections' (CDC) unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility" is unconstitutional because it violates inmates' Fourteenth Amendment right to equal protection.

Now, California has--I'm sorry, had--an unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility. Has overtones of the segregation of the past century, doesn't it? But this policy was based on the rationale that it prevents violence caused by racial gangs. Golly gee. If you're having problems with race-centered gang violence in your prison system, and you want to assess a new prisoner with respect to his race-gang potential, maybe having him bunk with a member of his own race could be a good idea. You'd think. But no. As has happened so many times before, The Council of Supreme Prophets, translating for us poor distracted masses the will of the "living, breathing document", have decided that what the people who actually work in prisons think could be plain common sense does not pass what the Prophets, in their divinely given supreme wisdom, call "strict scrutiny" and does not serve a "compelling state interest."

(Now, of course, neither "strict scrutiny" nor "compelling state interest" appear in the constitution. But don't you worry your simple little head about that, mortal. The constitution, recall, is a living, breathing document, and use of these two terms has a great deal of case law behind it.)

What we are dealing with here is that tired notion that the Fourteenth Amendment wraps up the Bill of Rights in a beautiful little bundle of joy wrapped in swaddling cloths, and applies it against the states. This is what I think is the second leg upon which judicial tyranny stands (the other one being the notion of judicial review). This notion also has a great deal of case law behind it.

But early 14th Amendment jurisprudence did not see it this way:

Take the Slaughterhouse cases (1873). On March 8th, 1869, the State of Louisiana passed a statute called "An act to protect the health of the city of New Orleans, to locate the stock landings and slaughterhouses, and to incorporate the Crescent City Livestock Landing aud Slaughter-House Company." Like most things politicians do it sounds great. What the act did, in fact was to create a monopoly. The act (1) forbade "[t]he landing or slaughtering of animals whose flesh is intended for food within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughterhouses or abattoirs within those limits except by the corporation" created by the act ("suitable penalties" were also enacted for violations of this prohibition); (2) designated the incorporators, gave the name to the corporation, and conferred on it the usual corporate powers; (3) authorized the incorporated company "to establish and erect...one or more stockyards, stock landings, and slaughterhouses," including "one grand slaughterhouse of sufficient capacity for slaughtering five hundred animals per day;" (4) granted this single company "the sole and exclusive privilege of conducting and carrying on the livestock landing and slaughterhouse business" in the parishes of Orleans, Jefferson, and St. Bernard; (5) stipulated "that all such animals shall be landed at the stock landings and slaughtered at the slaughterhouses of the company, and nowhere else; (6) enacted penalties violations of this statute; (7) fixed prices "for the maximum charges of the company for each steamboat and for each animal landed;" (8) required "the closing up of all other stock landings and slaughterhouses...in the parishes of Orleans, Jefferson, and St. Bernard, and [made] it the duty of the company to permit any person to slaughter animals in their slaughterhouses under a heavy penalty for each refusal;" (9) fixed "a limit to the charges to be made by the company for each animal so slaughtered in their building, and...provide[d] for an inspection of all animals intended to be so slaughtered by an officer appointed by the governor of the State for that purpose."

Now, if you were in the animal slaughtering business, what would you think of this law? Why, you would accuse the governor and the Republican-dominated legislature of having ties to Big Slaughterhouse. Then you would argue that the law creates a monopoly and confers "odious and exclusive privileges" on a small number of persons at the expense of the larger community of New Orleans. And, as if that were not bad enough, you would argue, it deprives a large and law abiding class of citizens (i.e., all of the butchers in the city) of the right to exercise their trade. They are no longer free to engage in the business for which they have been trained and on which they rely to support their families. In short, you would argue that you, being a butcher, are being deprived of either life, liberty, or property without due process of law, as guaranteed to you by the 14th Amendment of the United States Constitution. And you would take the case all the way to the Supreme Court if necessary.

Well, that's what a whole herd of butchers did in the parishes of Orleans, Jefferson, and St. Bernard, in the State of Louisiana. But the Court did not buy their argument.

First, the Court held that the legislative act in question was consistent with the police powers of a state government:

It is not, and cannot be successfully controverted that it is both the right and the duty of the legislative body -- the supreme power of the State or municipality -- to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively, it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else.

The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so to slaughter in their houses, and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and to pay a reasonable compensation for the use of the accommodations furnished him at that place.

The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details.

Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all, says Chancellor Kent, be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. (Slaughterhouse cases, at p. 61-2.)

In short, the legislation was a traditionally legitimate exercise of state power.

Second, on the question of whether the "privileges and immunities" clause incorporated and applied against the states the entire Bill of Rights, the Court had a rather lengthy discussion, but I qoute what I believe to be the relevant part of that discussion:

Its [i.e., the "privileges and immunities" clause] sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the States -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. (Slaughterhouse cases, at pp. 77-8, empases mine.)

After reading an opinion like that, one might be tempted to sigh and long for the good old days. But let's just remember that those good old days included states depriving black Americans their newly won civil rights. Still, the Court knew and acknowledged what the law was.

I believe that Judge Bork, in The Tempting of America, wrote that although this notion of the 14th Amendment incorporating the Bill of Rights is in error, we'll have to live with it because undoing it would require as much in the way of judical activism as its creation. Besides, I think some others have said, it has become a settled legal principle. But, if this settled legal principle is a means by which judicial tyranny is exercised, is this not just to say that we shall have to live with a certain amount of judicial tyranny? I think it is. (Besides, at one time Dred Scott, an opinion so long and tedious it would be not worth reading except for its historical significance, was once settled legal principle; and now so is Roe v. Wade.)

Another interesting case on early 14th Amendment jurisprudence is Hurtado v. California, but we don't have time for all here. (It would be time well spent in reading it. It includes an educational discussion of the history of the phrase "due process" going back to Magna Charta.) It involves a man who claimed that his California trail violated the 14th Amendment's due process clause because it proceeded without benefit of a grand jury indictment. The Supreme Court, back in 1884, ruled against him.

I reject the notion that the 14th Amendment incorporates the Bill of Rights. The notion is one of the many things that makes judicial tyranny possible, and "settled legal principle" or not, we need to get rid of the notion. This "settled legal principle" only means that some amount of judicial tyranny is a settled legal principle. "Incorporation" ought to talked about as if it were as bad as "taxation with no representation", because it is. It is legislation without representation.

No legislation without representation!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!