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The Supreme Court and Regime Change

July 4, 2018

Growth of American government from a States’ oriented republic to a centralized “state” was made possible by changes in law, a Civil War, new scientific theories that affected the religious beliefs of American citizens, and aggressive empowerment of the national government by the Supreme Court of the United States.

The original Constitution “framed” in 1787 at a Convention of Delegates of thirteen States in Philadelphia was a Legislative Supremacy regime. The Congress of the United States was given supreme powers because it was the most representative branch. The Congress was composed  of Representatives elected by the people to a lower body directly and through their State governments who chose Senators.

That wasn’t a good enough protection of the States for advocates of the powers of the States and a Bill of Rights was added to the Constitution in ten Amendments. Those Amendments were designed to protect the powers of the States, not to affirm a role for the national government in protecting rights of individual persons.

Much to the chagrin of these State representatives, including Thomas Jefferson, the Federalists used the Judicial Power to claim the power of the Supreme Court to declare unconstitutional acts of the Legislature. Mr. Justice John Marshal–a mere fourteen years after ratification of the Constitution–affirmed in Marbury v. Madison (1803) a power of judicial review.

After the Civil War, in 1866, a 14th Amendment to the Constitution was passed that affirmed new powers of the national government:

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.

Fifty-nine years later the Supreme Court in Gitlow v. New York began to engage in “incorporation” of the Bill of Rights as limits on the States. By reversing Barron v. Baltimore (1833) that held that the Constitution’s Bill of Rights applied only to the federal government, the basis for growth of a centralized state was declared in the name of freedom.

The lynchpin in the argument for Incorporation was the 14th Amendment.  But, was it the intention of the authors of that Amendment to compel uniformity of the States to a centralized state?

Good question and we’ll address it anon.

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