Supreme Court: California can’t ban violent video game sales

Spencer Warren writes:

The 7-2 decision shows that Scalia, Roberts, Alito are liberals. Liberty means license.

LA replies:

They’re simply following the long established but baseless and unconstitutional jurisprudence proceeding from the Incorporation Doctrine, under which the First Amendment, including the phrase “Congress shall make no law … abridging the freedom of speech,” applies not just to the Congress but to state and local governments. As long as the Incorporation Doctrine and the decisions based on it endure, laws such as California’s outlawing violent video game sales to minors are doomed. I’m astonished that California legislators imagined that they would be able to get this past the U.S. Supreme Court.

Up to 30 or 40 years ago, conservatives understood that the Incorporation Doctrine (which “incorporates” the Bill of Rights, with its restrictions on the Congress, into the 14th Amendment, with its restrictions on the states) was a major engine of modern liberal statism. Today, 99.7 percent of conservatives don’t know what the Incorporation Doctrine is, let alone oppose it.

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Corey N. writes:

Why do you say the Incorporation Doctrine is unconstitutional? The 14th amendment seems to say clearly exactly what you are saying is unconstitutional; that the state governments are bound by the same restrictions as the federal government. If the states are not bound by the same restrictions as the federal government, then the 14th Amendment’s purpose of restraining state governments from doing certain things cannot be accomplished.

To be specific, what I am referring to is the beginning of the second sentence of the text:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”

I do not see how this can be interpreted as saying that the states are NOT bound by the same restrictions on power as the federal government—those restrictions are among the privileges and immunities of US citizens. I have looked through some of the articles in the link you provided, but I don’t see anything that directly addresses this.

LA replies:

You are fantasizing a meaning of the 14th amendment that was the farthest thing from the minds of the representatives who drafted and passed it, and injecting into it the meaning that it has acquired via the Incorporation Doctrine.

The framers of the Amendment discussed in great detail what they meant by such recondite phrases as “the privileges or immunities of citizens of the United States.” They meant, not any right, and not the civil rights protected in the Bill of Rights, but fundamental human rights, the rights needed to exist as a human being. The purpose of the 14th amendment was to protect the freed slaves from the draconian black codes that had been passed after the war, which made it impossible for the freedmen to move about, to own property, to engage in business, to function normally in life.

If the 14th amendment had been intended to apply the Bill of Rights to the states as well as to Congress and thus turn the Bill of Rights on its head, making the Bill of Rights a restriction on state power instead of a restriction of the power of Congress over the states, and to declare, e.g., that the states could not have establishments of religion, and that the states could not abridge the freedom of speech, and that a local community could not restrict publications sold in that community, and on and on, wouldn’t the framers of the Amendment have said something to that effect? But, in their highly detailed discussions in Congress of what the purpose of the Amendment was, they said nothing like that. To the contrary, they made clear that the Amendment had a narrow purpose, to protect the human rights of the freedmen.

Further, if turning the Bill of Rights on its head had been the understood purpose of the Amendment, such a revolutionary Amendment would never have been ratified by the states. In fact, these meanings and other meanings of the 14th Amendment only were injected gradually, by many Supreme Court decisions through the course of the 20th century. The Court had to find or rather invent these meanings in the Amendment; the meanings were not, as you imagine, obvious.

The primary source on this subject is Raoul Berger’s “Government by Judiciary: The Transformation of the Fourteenth Amendment.”

LA continues:

I hope I’m not being misunderstood here. I think the decision is an outrage, but it’s an outrage from the point of view of the Constitution properly understood, and the problem is that no one, including conservatives, has that understanding any more. If the Constitution were properly understood, this case wouldn’t exist, because the federal judiciary would have absolutely no jurisdiction over the type of state law that is at issue here.

A fundamental purpose of the U.S. Constitution, and the main purpose of the Bill of Rights, is to restrict the power of the federal government to certain enumerated powers and implied powers needed for exercising those enumerated powers, and to leave the states otherwise free of federal encroachments. But because of the revolutionary Incorporation Doctrine (along with that other major perversion of the 14th Amendment, the absurd but now fully established concept of “substantive due process”), the federal judiciary now has powers over the actions of state and local governments that no legislator, no democratically acting body, ever intended it to have. The horror is both that this situation exists, and that so-called conservatives have completely accepted it. It doesn’t even occur to them that there is anything improper about the federal courts having the power to decide whether a state can have a law prohibiting the sale of violent video games to minors, or whether the federal courts have power over such things as school prayer, or the placing of the Ten Commandments in front of a county courthouse, or loitering laws, or vagrancy laws, or dress codes in public schools, or local laws banning pornography, or laws banning illegal aliens from public benefits and public schools, or thousands of other local matters which, if the Constitution were in force, would be understood as solely the province of the local and state governments. Conservatives don’t like many of the decisions that have overturned local laws and customs, but they miss the core of the issue, which is that the federal judiciary, under the Constitution properly understood, does not have any power over these matters. Conservatives accept entirely the revolutionary usurpation of local and state self-government by the federal judiciary, and then complain about the results of the decisions in these federal cases which should not have existed in the first place.

Of all the disastrous failures of the conservative movment during the last several decades, this is the worst, because there was a time when serious conservatives understood these points and tried to fight back against the judicial revolution which had allowed all these improper federal encroachments to take place. But such conservatives are gone. What better captures the impotence and delusion of modern conservatism, than the fact that 99.9 percent of conservatives are totally unaware of the single greatest engine of modern liberalism and take its consequences for granted.

Laurence B. writes:

I am not as ready to judge the Supreme Court ruling on the California video game regulations. On one hand, it’s true that the Court’s ruling was quite a stretched application of the first amendment. Even more troubling is the precedent it sets, which I imagine will allow for the unrestricted sale and viewership or pornography as well, if the graphic sexuality and violence in these games is now secured for sale by the government.

On the other hand, the Court’s ruling does put the responsibility back with the parents, and any hesitance to expand federal authority into the realm of individual parenthood is also a good thing. I find the Supreme Court’s rationale very troubling, but the (perhaps unintended) direct result of leaving such decision up to parents is also welcome.

Laura Wood put it well when she said, “Freedom of expression is held more sacred than the right of the community to protect the young.” This is certainly true with our current state of society, but I think this ruling may actually prod communities to protect their young, instead of relying on the government to do it.

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A reader writes:

With regard to your recent comments on the Incorporation Doctrine, it is useful to connect them to your slightly less recent observation of the evils that slaveowners have visited upon their ancestors in the United States. Without slavery, no Fourteenth Amendment. Thanks, slaveowners.

LA replies:

Yes. More specifically, without the draconian Black Codes after the Civil War, no Fourteenth Amendment.

Also, without slavery and its aftermath, segregation and Jim Crow, no Civil Rights movement, no conversion of the American mind to the belief that America is a guilty country that must make amends by destroying itself.

I hope a certain reader doesn’t write to me again arguing that slavery was peachy keen and that I am unfairly imposing the moral standards of 2011 on the people who brought black slavery to America.

June 29

James P. writes:

You wrote,

Also, without slavery and its aftermath, segregation and Jim Crow, no Civil Rights movement, no conversion of the American mind to the belief that America is a guilty country that must make amends by destroying itself.

This chain of logic contains a faulty premise. Importing African slaves before 1860 is not, in fact, the prerequisite for getting us where we are now. There were only trivial numbers of African slaves in Britain or France, and to my knowledge there were never any African slaves imported to work in Australia or Ireland. Yet Britain, France, Ireland and Australia are as much in thrall to the diversity cult as we are, if not more. They view themselves as guilty countries that must make amends by destroying themselves; case in point, the recent decision of the Sydney city council to declare the British settlement of Australia an “invasion.” To that end, these countries are energetically importing non-whites to replace their native white populations (for example, the “tidal wave” of African and Asian immigrants to Ireland, and in Australia, Asian-born Australians may soon outnumber whites). In these countries, the native white population is forbidden not merely to defend itself but even to speak of defending itself—this is politically illegitimate! And they never had significant numbers of slaves on their soil, if any at all!

Taking modern Britain, France, and Australia as examples, if large numbers of African slaves had not been brought here before 1860, liberalism would have found a way to bring non-white aliens here in large numbers anyway. Indeed, as you know very well, we are bringing in large numbers of aliens even though we already have a great many blacks descended from slaves. There are many European countries, like Germany, Spain and Italy, that had essentially no historical connection to African slavery, but are importing huge numbers of non-white immigrants. In short, liberalism is the source of our current problems and of our lemming-like suicidal urges, not slavery.

I hope a certain reader doesn’t write to me again arguing that slavery was peachy keen and that I am unfairly imposing the moral standards of 2011 on the people who brought black slavery to America.

I wish you’d present the argument fairly. I did not argue that slavery was “peachy keen.” [LA replies: It sounded that way to me. If you don’t want people to think that you think that slavery was peachy keen, I respectfully suggest you reconsider the terms in which you defend it.] I argue that the 2011 view of slavery is the product of 1800s abolitionist propaganda and the post-1965 liberal white guilt industry, and that pre-1860 sources contradict the view that slavery was an unremitting hell for the slaves.

LA replies:

Replying to James P.’s main point: I did not say or suggest that black slavery was the only cause of modern suicidal liberalism throughout the West. To the contrary, I have written previously that each Western country has its own particular history and experience over which it feels suicidally guilty. America has slavery and segregation; Britain has imperialism and colonialism; Sweden has … Swedishness, and so on. I have further argued that this is a perfect illustration of Toynbee’s thesis, laid out in the brilliant first chapter of A Study of History, that the civilization is the smallest social unit that can be an intelligible object of study. Thus different societies within Western civilization have had their own particular reasons for adopting suicidal liberalism, but these particular reasons cannot be understood apart from the larger phenomenon of which they are a part, which is that the entire West has adopted suicidal liberalism.

Also, because of the overwhelming influence of America and American liberalism on the postwar West, it could also be said that American guilt about blacks was a driving impetus behind other forms of white guilt about nonwhites in other Western countries. In other words, other Western countries, imitating their leader, America, adopted elements from their own national histories to feel guilty about. I’m not saying that’s a complete explanation but I think it’s part of it. Thus even a Toynbean “civilization-wide” study of white guilt might lead us back to American slavery as a major common component for the West as a whole.

Focusing for a moment on the U.S. and not the West as a whole, another problem in understanding this issue is that that oppression of blacks is not the only reason, even in America, for suicidal liberalism. At the same time, I do believe that it is the main and driving reason.

Given the multidimensional quality of the problem, the question arises how it can be discussed at all. James would like to have it that since suicidal liberalism has had many sources, it’s not right of me to focus on slavery as a source. But that’s incorrect, because slavery, in America, remains a major source of white guilt, and, as I’ve argued above, may, through America’s tremendous influence, be a source for other countries as well. In any case, we cannot deal with all aspects of the situation at once. But we can say, as I have said in a hundred ways (most particularly in my 2005 FrontPage Magazine article “Guilty Whites,” that the presence in America of a vast population of blacks of lower civilizational abilities, combined with the white belief in the natural equality of all groups, has been the major factor driving suicidal white guilt. And how did those blacks get here? As a result of slave buyers in the 17th and 18th century who thought it was a neat idea to import black slaves into the American colonies—a belief and a practice which James himself has so far utterly refused to criticize. To the contrary, he defends them to the hilt.

LA continues:

Also, my criticisms re slavery are directed at those who brought slavery here. Once it existed here, I don’t blame the people who grew up in a slave society and operated within it and continued it. By that point, there was no way out, they had the wolf by the ears.

Posted by Lawrence Auster at June 28, 2011 03:23 PM | Send