Ignorance in High Places

Does the attorney general of the United States really believe that the Bill of Rights does not apply to the states? Does he really believe that a state could pass a law restricting a citizen’s rights and get away with it? That astounding assertion is what the attorney general implied Tuesday in the text of a speech to the American Bar Assn. in which he criticized the “theory of incorporation,” the doctrine under which the Bill of Rights restricts the states as well as the federal government. Atty. Gen. Edwin Meese III’s criticism of that doctrine as “politically violent and constitutionally suspect” reveals his ignorance of history as well as of law.

Meese is angry because in the term just completed the U.S. Supreme Court decided four major religion cases on the side of a strict separation between church and state. The Reagan Administration had argued that all four cases--Alabama’s “moment of silence” in public schools, Connecticut’s sabbath law, and shared-time instruction in Michigan and New York--should be decided on behalf of the states. But the Supreme Court struck down all four laws, relying on the First Amendment prohibition against “an establishment of religion.” The First Amendment says that Congress can’t do it and, by extension, the states can’t, either.

Meese questions that extension. But by doing so he ignores the outcome of the Civil War. A fundamental issue was whether a single constitutional standard applied throughout the United States or whether each state could apply its own. The 13th, 14th and 15th amendments to the Constitution were enacted after the Civil War to provide uniform minimum rights that all Americans have and that no state government has the right to take away. From the very beginning that is the way the amendments were interpreted.

The 14th Amendment says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens,” and the court began applying uniform law on the basis of that clause. In the 1890s the court started using the “due process” clause of the 14th Amendment to protect citizens’ rights, and finally, starting in 1925, the “theory of incorporation” took hold--first as the minority opinion of Justices Oliver Wendell Holmes and Louis D. Brandeis and finally in 1931 as the court’s majority opinion. In 1931, in the case of Stromberg vs. California, the Supreme Court struck down California’s law that made it a crime to display a red flag. It was the first case in which the First Amendment was explicitly applied against a state to reverse a conviction, and since then there have been hundreds of cases in which the court has consistently looked to the Bill of Rights to regulate state conduct.

Shouldn’t the attorney general of the United States know this? The only thing constitutionally suspect in this discussion is Ed Meese.