Some years later, the Court started ruling that particular provisions of the Bill of Rights do protect individuals from state laws, a process known as “selective incorporation.” But rather than admit that Slaughterhouse was wrongly decided, the Court started finding that these rights were protected through DPC, first in Gitlow v. New York (1925), and then in many other cases. Now, almost the entire Bill of Rights is now incorporated — but not the Second Amendment. The reasoning behind selective incorporation is almost non-existent. The situation is so bad that it has become something of an embarrassment to many legal academics — even those that don’t particularly like the idea of incorporating the Second Amendment.
The concern that Klukowski and Blackwell have is that the left has accomplished much of its judicial activism to transform America through two patently false interpretive approaches: DPC and EPC. (That includes court protection of virtual child pornography, abortion, striking down of sodomy laws, and imposing same-sex marriage on the states.) P or I, it seems, would open an entirely new set of bogus arguments.
I understand Klukowski and Blackwell’s concern, but I don’t agree, primarily because the left’s judicial activism has never been limited by anything as pedestrian as following the Constitution. When Congress adopted the Fourteenth Amendment, sodomy was a criminal offense in 32 of 37 states. It would require remarkable evidence to establish that Congress and the states intended the Fourteenth Amendment’s DPC to overturn existing criminal statutes with respect to what law books of the period consistently called “the infamous crime against nature,” (California’s Penal Code) or “the detestable and abominable crime against nature” (from that other center of cosmopolitan thought, New York State). And yet in Lawrence v. Texas (2003), that’s exactly what the majority decided: that Texas’s sodomy law violated DPC. And Justice O’Connor’s concurring opinion decided that Texas’s sodomy law violated EPC.
To quote Justice Thomas’s dissent, which was quoting a previous decision, Griswold v. Connecticut (1965), this is an “uncommonly silly” law. Like Justice Thomas, had I been in the Texas legislature, I would have voted to repeal it. But silly, foolish, or counterproductive isn’t the same as unconstitutional. Yet with no valid basis for striking down that law, the Court did so.
There are many other examples of how the Court has struck down state laws based on this ahistorical reading of the DPC and EPC, such as Shapiro v. Thompson (1969), which struck down Connecticut’s residency requirement to collect welfare as a violation of EPC. I share Klukowski and Blackwell’s concerns — but I have enormous confidence that the judicial activists that gave us Lawrence, Griswold, Roe v. Wade, and hundreds of other bizarre decisions aren’t going to be much influenced by the results of McDonald.
They will twist or imagine the right to have sex with 10-year-olds through P or I, or DPC, or EPC, or freedom of religion if necessary. (I think you get extra points on your law school exams if you can find a way to justify it through the interstate commerce clause.) Facts and history seldom stop this crowd.