Wampum

Litmus Test

In several prior posts, I suggested certain of President Bush’s nominees to the Federal Circuit Court’s of Appeals should be opposed on grounds of their lack of experience and their conduct without reference to their substantive political and judicial views.

Today, I will argue that Janice Brown, a nominee for the Circuit Court of Appeals for the DC Circuit, should not be confirmed.

Justice Brown has an impressive resume. She has a law degree from the University of California and an L.L.M. from U.VA. She worked as a Deputy Attorney General for the state of California for nearly a decade. She has taught law and worked in private practice. She has served on the bench for more than a decade including nine years on the California Supreme Court. Justice Brown has ample credentials to serve on the Circuit Court.

Why then do I oppose her confirmation? The People For the American Way have raised concerns over Judge Brown’s decisions in the areas of civil rights, worker and consumer rights, privacy, economic and environmental regulation, and First Amendment issues.

Now, I must admit that her positions on those issues would preclude me from choosing her for the Court. As luck would have it, however, I wasn't elected President and George Bush was. I can’t expect him to nominate the folks I would choose. While her past decisions are troubling, let’s give her a pass on those issues for there is a much more important reason to oppose Justice Brown's confirmation.

What I can not abide is her view of the incorporation doctrine. PFAW provides the following quote from Judge Brown:

The United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into the 14th Amendment…The historical evidence supporting what the Supreme Court did here is pretty sketchy…The argument on the other side is pretty overwhelming that it’s probably not incorporated.

- Janice Rogers Brown, Speech to Pepperdine Bible Lectureship entitled “Beyond the Abyss: Restoring Religion on the Public Square,” in 1999

If that quote is accurate (I am a bit suspcious about the ellipses), in context, and if it means that Judge Brown does not believe in the incorporation doctrine, then she is unqualified to sit on the Federal bench.

Let’s see how the incorporation doctrine works. The First Amendment of the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Many people understand that provision to mean that newspapers do not have to be submitted the government for approval before publication. They think that the First Amendment protects them from being put in jail for saying something politically unpopular. Most people think that the First Amendment would keep the government from making it a crime to read the Bible, or to not read the Bible. Most people think that the government can not require them to be a Catholic, or to pray five times a day while facing Mecca, or whatever.

Please note, however, that the plain language of the Amendment only prohibits the Congress from passing laws that that would require or prohibit those things. The First Amendment, by itself, does not keep state or local governments from putting you in jail for criticizing the mayor, or for having a different faith than the governor. That is where the incorporation doctrine comes into play.

After the Civil War, the 14th Amendment to the Constitution was ratified. That Amendment says, in part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The plain language of the “privileges and immunities” clause, the due process clause, and the equal protection clause do apply to the states. The incorporation doctrine holds that the 14th Amendment incorporates the rights embodied in the First Amendment (and various other rights contained in the Bill of Rights) and makes those rights applicable to the states.

Thus, the First Amendment, incorporated through the 14th, bars a state law requiring your local newspaper to submit each day’s edition to the governor’s office for approval. Freedom of the press means freedom not just from federal government interference but from interference from the state governments as well. Under the incorporation doctrine, neither the federal nor state government can tell you how to worship and to back up its directive with the threat of incarceration.

Justice Brown, apparently, does not believe in the incorporation doctrine. Apparently, she believes that a state law calling for incarceration of anyone who criticizes local officials is just fine if it is valid under state law.

It is true that most (all?) state constitutions provide some sort of First Amendment protections. Nonetheless, I do not think that application of the Bill of Rights should be a matter of experimentation among the various states. It is quite possible that an individual state might enact an official religion and require compliance of all citizens by threat of fine, incarceration, or other sanction. Here is a list of countries with official religions. In colonial America, a number of individual states, including Virginia and Massachusetts, had official religions. It is not so far fetched to think that a movement to enact official state religions could arise again, at least in the absence of the incorporation doctrine.

History also shows that freedom of the press and speech are not always popular and, in the absence of the incorporation doctrine, could be extinguished in individual states.

Presidential candidates are often asked if they have a “litmus test” for judicial nominees. Keeping the rights and freedoms embodied in the First Amendment safe from encroachment by any level of government is a litmus test for me. Apparently, Justice Brown fails that test.

Posted by Dwight Meredith at March 30, 2005 08:09 PM | TrackBack