The Federalist Blog

I was reading today about a federal case (Morse v. Frederick, aka “Bong Hits 4 Jesus” case) winding its way through the courts, and was thinking how bizarre current federal jurisprudence has really become. On March 19, the United States Supreme Court will hear oral arguments over the limits of freedom of speech in public schools.

“I wanted to know more precisely the boundaries of my freedom,” Joe Frederick said when reporters asked why he’d raised the “Bong Hits 4 Jesus” banner. “I feel that if you don’t use your rights you lose them.”

It is all about rights, isn’t it? But where exactly are those rights citizens of a State can claim under the U.S. Constitution, for which in return they can seek federal intervention? Up to 1925, the Supreme Court had said, “neither the 14th Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ . . .” (Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922))

The court was absolutely correct, nothing in the Fourteenth Amendment conferred new “rights” to citizens of the United States, and for those rights secured to citizens was kept where such rights had always been kept: under State Constitutions and laws. If the Fourteenth Amendment secured anything to anyone, it was to secure redress in the event of State enactments that placed United States citizens on unequal footing with those of their own citizens (Article 4, Section 2 P&I’s) in regards to life, liberty or property.

Three years after Prudential Insurance Co. v. Cheek, the court does a total reversal and says:

For present purposes we may and do assume that freedom of speech and of the press – which are protected by the 1st Amendment from abridgment by Congress – are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the 14th Amendment from impairment by the states. (Gitlow v. New York, 268 U.S. 652, 666 (1925))

I’ll give the court in Gitlow credit for not coming right out and saying the 14th Amendment secured First Amendment protections against State and municipal acts, for that would have been too easy to debunk since it would had required, among other things, to demonstrate that three-fourths of the States had freely surrendered their absolute jurisdiction over regulating the liberties of their own citizens. Instead, this court, and future courts, simply hanged their hat on an “assumption,” not a fact or any historical event of States freely consenting in surrendering their reserved authority over their own citizens.

To paraphrase Jefferson, “can it be believed that the States meant to surrender the authority of preserving order, of enforcing moral duties, and restraining vice, within their own territory?”

Truth be told, the States never ousted their retained right to enable local governments under them to regulate speech in a manner they found appropriate for their communities and customs. The court will have to keep assuming they have such authority that they have assumed for themselves because they will never be able to prove the States ever surrendered such power over its own citizens.