How to drive a stake into the heart of modern liberalism

In July I proposed a Constitutional amendment that would eliminate in one blow the two main judicial perversions of the U.S. Constitution, which are also two of the main building blocks of the modern liberal state: the Incorporation Doctrine and Substantive Due Process. I’ve just modified the draft amendment to make it more precise. For one thing, in the original version I had failed to note that due process only refers to judicial procedure, not to legislation, a point made crystal clear by the framers of the Fourteenth Amendment and documented by Raoul Berger in chapter 11 of his seminal work, Government by Judiciary: The Transformation of the Fourteenth Amendment. Someone pointed out recently at VFR that due process in its origins in England did have a “substantive” component. However, even if that is true it is irrelevant, since the framers of the Fourteenth Amendment underscored their understanding that due process as referred to in the Amendment as a requirement for depriving a person of life, liberty, or property referred only to a properly instituted judicial procedure in which a person receives notice of any action against him and is given the opportunity to answer it.

Thus, for example, the notion that, in the name of “due process,” a law passed by a state legislature banning the teaching of subjects in foreign languages to pupils in the lower grades would be voided by the U.S. Supreme Court for such an obscure reason as that “mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper” would be inconceivable to the legislators who authored the Fourteenth Amendment. The language just quoted is the key language in the 1923 Meyer v. Nebraska decision. What it means is that since teaching people to speak a foreign language is ordinarily a good thing, a state cannot prohibit such teaching, as the Nebraska legislature had done, merely because in certain instances it will prevent a child from ;l;learning to speak English as his mother tongue. Thus, the Supreme Court’s reasoning went, for Nebraska to ban on pain of fine and imprisonment the teaching of subjects to young children in a foreign language was to deprive persons of their liberty and property “without due process of law,” and therefore was in violation of the Constitution. This is a pure example of Substantive Due Process in action, both because it is overthrowing a law based on its substantive result rather than on the basis of a lack of proper process, and because it is overthrowing a legislative act rather than a judicial determination. Meyer v. Nebraska, an avatar of Substantive Due Process, was in turn a key precedent in the 1969 Tinker v. Des Moines decision, which held that a high school had no authority to prevent its pupils from wearing arm bands protesting the Vietnam War, thus establishing the rule that American public schools have no authority to regulate student dress unless it is “disruptive.”

It is a remarkable fact that the overwhelming majority of conservatives know nothing about the Incorporation Doctrine and Substantive Due Process, these two totally illegitimate concepts without which the modern liberal order with its destruction of local, state, and national self-government would not exist.

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Eric L. writes:

Congratulations Mr. Auster, your article “How to drive a stake into the heart of modern liberalism” wins this year’s George Will Award for the most obtuse article on the Internet and the William Buckley Award for the most incomprehensible language used to write an article.

I am quite certain that dismantling the Incorporation Doctrine and Substantive Due Process will nail liberalism at its core and we will have proper sexuality, cultural and racial balance, and judicial restraint throughout the land, praise be to God. Praise the Lord, Amen and Hallelujah, we have found how to drive the demons out from our nation.

LA replies:

Gosh, the next thing we know, Eric L. will be calling me a know-it-all God-hopper. And just for arguing that we ought to limit the Fourteenth Amendment to its intended meaning.

However, I don’t mind that he calls me a religious extremist; it’s his comparing me to William Buckley and George Will that really hurts.

I hope my writing is not anything like that of those two frequently incomprehensible Olympians. However, Substantive Due Process and the Incorporation Doctrine, especially the former, are not easy ideas to understand. The reason they’re not easy to understand is that they are literally absurd and nonsensical. And that is a key to their power. The Constitution has been illegitimately re-written on the basis of ideas that no normal person can make sense of. One of the conditions of being a self-governing people is that the concepts on which our government is based be intelligible to persons of normal intelligence. If we are to free ourselves from these incomprehensible ideas, we must comprehend them, and that takes work.

Terry M. writes:

I’m not necessarily suggesting that’s the way to go about doing it, just putting forth ideas. But, what is the Hammer with which we can drive a stake through the heart of modern liberalism?

LA replies:

You are a very sharp fellow. You are right that what I’ve provided here is the stake, not the “how to” of driving the stake through the heart of liberalism.

Tim W. writes:

It’ll be hard to find a hammer to drive any stake through the heart of liberalism on constitutional matters. The problem is, we’re fighting under rules rigged to support our enemies.

The Founding Fathers intended for the Constitution to be changed only via super-majorities. That’s why such majorities are required both in Congress and in the number of states needed for ratification of any constitutional change. Those are the rules, and we, as conservatives, follow them. We’ve proposed constitutional amendments to require balanced budgets, to restore voluntary school prayer, to protect the flag, to guarantee the right to life of the unborn, and to protect marriage. None has passed. None has even gotten out of Congress.

Liberals don’t even bother trying to amend the Constitution anymore. They assume the courts will amend it for them. Rather than trying to garner the difficult super-majorities needed for legitimate ratifications, they create a consensus within the academic and media communities for any change they desire. The change may not be popular with the general public, but it doesn’t have to be. All it needs is enough elite support to block conservatives from getting a super-majority to oppose it. Really, it needs nothing more than one-third of the vote plus one in the Senate and we’re trumped. Once they have this, the liberal zeitgeist in the legal community and among the media elite pushes the judiciary into “interpreting” some existing provision of the Constitution (usually the 14th Amendment) as mandating whatever the left demands.

The last time the left tried legitimately to amend the Constitution was with the ERA. It failed, but it didn’t matter because the courts read it into the 14th Amendment in rulings such as the VMI decision. No one is bothering to propose an amendment to guarantee a right to same sex “marriage.” Instead, it’s taken as a given that the courts will eventually add this amendment by fiat. Instead, conservatives are trying to amend the Constitution to stop it. So we’ve come full circle from what our Founders intended. Instead of requiring super-majorities to change the Constitution, it’s now expected that it will change automatically in a liberal direction unless conservatives can get super-majorities to keep it the same.

LA replies:

Tim’s last point is devastating and deeply discouraging. But of course he’s still assuming a world in which liberalism is in the saddle. I do not assume that such a world is going to continue indefinitely.

Posted by Lawrence Auster at September 11, 2007 01:20 PM | Send