You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited. 
How the First Amendment Came to Protect Topless Dancing
A History of the
Incorporation of the Bill of Rights
into the Fourteenth Amendment,
Why It's a Problem,
and How to Fix It
By Susan Shelley

Copyright 2002 

Part IV

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(This essay is the appendix to The 37th Amendment, a novel by Susan Shelley. Available at,, and wherever books are sold, or read it online by clicking here.)

Continued from Part III


The Griswold decision set a precedent for the enormously controversial 1973 Roe v. Wade176 decision striking down a Texas law--and all similar state laws--which restricted abortion. It's the most emotional illustration of the problem with the "fundamental" vs. "compelling" test: whether a woman's right to privacy is sufficiently fundamental or whether a state's interest in protecting an unborn life is adequately compelling is, as Justice Frankfurter put it, "merely subjective." The decision must depend on the personal values of the justices who sit on the Court. It should surprise no one that the Senate confirmation process for federal judicial nominees has become a fight to the death between opposing sides of the abortion question. The Roe v. Wade decision turned the Senate confirmation process into the last opportunity for the people of the United States, through their elected representatives, to have any say at all in the making of law and public policy on this issue. 

Just for comparison, let's look at how the Founders' design, as James Madison explained it, would handle the abortion question. The power to regulate--or not regulate--abortion is not one of the "few and defined" powers delegated by the Constitution to the federal government, therefore it is one of the "numerous and indefinite" powers which remain in the state governments. Therefore the people of California and the people of North Carolina may each decide for themselves what their law on the subject should be, without consulting each other, blocking each other's judicial nominees, or voting for each other's highway projects. 

The Founders might have suggested that the people of the United States amend the Constitution to establish--beyond the reach of any future Court or Congress--that a woman has a right to privacy, or that a fetus has a right to life, or that a woman has a right to privacy in the first trimester of her pregnancy and a fetus has a right to life in the third. Whether any of this is a good or bad idea is an argument for another day. The point is that the Founders excluded the judiciary from policy-making, and we should seriously consider the possibility that they knew what they were doing. 

Now let's consider, on a lighter note, the Vietnam War. 

In December, 1965, the school district of Des Moines, Iowa, suspended a handful of children for wearing black armbands to class as part of a locally-organized protest against the U.S. government's policy in Vietnam. School officials, fearful of fights between the young anti-war protesters and those fellow students who might be inclined to punch their lights out for not supporting U.S. troops overseas, had adopted a policy that required students wearing armbands to remove them. Students who refused would be suspended until they agreed to come back to school without the armbands. 

The students sued in federal court, arguing that their right to freedom of speech had been denied. The U.S. District Court ruled against them, as did the U.S. Court of Appeals, both courts agreeing that the suspension policy was within the powers of the school officials. 

The case, known as Tinker v. Des Moines School District,177 came to the U.S. Supreme Court, which handed down its decision in February, 1969. 

The Court held that because the students were quiet and passive, not disruptive or impinging on the rights of others, their right to wear armbands was protected by the Constitution: 

A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.178 

Writing for the Court, Justice Abe Fortas stated, 

[O]ur independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students.179 

Justice Hugo Black, three days shy of his 83rd birthday, nearly blew a gasket. In a blistering dissent, he wrote: 

The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools..." in the United States is in ultimate effect transferred to the Supreme Court.180 

He goes on: 

As I read the Court's opinion it relies upon the following grounds for holding unconstitutional the judgment of the Des Moines school officials and the two courts below. First, the Court concludes that the wearing of armbands is "symbolic speech" which is "akin to 'pure speech'" and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are "reasonable."181 

He's not quite through: 

I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.182 

Despite Justice Black's fury, the new rules for schools became the law of the land. Students could not be penalized for "symbolic speech" as long as it was not "unreasonably" disruptive. (Thirty years later, a school district in Colorado would take no action against Columbine High School students who called themselves the Trenchcoat Mafia, wore German slogans and swastikas on their clothes, and greeted fellow students with "Heil Hitler.")183 

You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.

A year earlier the Court had decided another symbolic-speech case, this time involving a young man named O'Brien who had burned his draft card on the steps of the South Boston courthouse. He was convicted of violating a 1965 amendment to a federal law that made it a crime to knowingly mutilate or destroy a Selective Service registration certificate, and he appealed on the grounds that the provision abridged free speech and served no legitimate legislative purpose. 

Can an action that is obviously a political protest be outlawed by Congress when the U.S. Constitution plainly says Congress shall make no law abridging the freedom of speech? 

The Supreme Court's answer was a four-part test to weigh the government's interest in regulating the "nonspeech" element against the individual's First Amendment protection of the "speech" element. The Court said a restriction on symbolic speech was allowable if: 

1. The government has a constitutional power to enact it. 

2. It furthers an important government interest. 

3. The important government interest is unrelated to suppressing free expression. 

4. The restriction doesn't go one step beyond what's necessary.184 

The ban on burning draft cards, the Court said, met all those conditions. The justices ruled against Mr. O'Brien and upheld the law. 

The delicate O'Brien decision was delivered in the midst of the national turmoil and high emotion that surrounded the issue of the Vietnam draft in 1968. The situation was a little different in 1991 when the Court applied the four-part O'Brien test to the case of the Indiana indecency law versus the Kitty Kat Lounge. 

By a vote of five to four, the Court held: 

Applying the four-part test of United States v. O'Brien, which rejected the contention that symbolic speech is entitled to full First Amendment protection, the statute is justified despite its incidental limitations on some expressive activity.185 

Here's how the majority figured it, using the O'Brien test: 

1. "The law [requiring the dancers to cover up] is clearly within the State's constitutional power" because "[t]he States' traditional police power is defined as the authority to provide for the public health, safety, and morals...." 

2. "[I]t furthers a substantial governmental interest in protecting societal order and morality." 

3. "This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity." 

4. "[T]he incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest" because "the statutory prohibition is not a means to some greater end, but an end itself" and is "narrowly tailored."186 

And with that, the Indiana law requiring G-strings was permitted to stand. Make up your own joke about narrow tailoring and greater ends. 

It's obvious that with four justices dissenting from this decision, the balancing act of the O'Brien test might turn out differently next time. And that is the central problem with the incorporation doctrine. Judgment calls that once belonged to local voters and their elected representatives have been seized by the U.S. Supreme Court, which does not have the information, the expertise, the staff, the time, or the authority under the Constitution to determine the necessity or appropriateness of every state and local law. 

Under the incorporation doctrine, the Court is proceeding as if the Constitution has been amended to read, "Neither the United States nor any State shall make or enforce any law which violates a fundamental right unless absolutely necessary." But no such amendment has ever been proposed, let alone ratified. In fact, the American people, when asked, have not expressed much affection for the Supreme Court's expansion of federally-enforceable rights in state courts. As DePaul University law professor John F. Decker noted somewhat irritably in 1992, 

Following the (1) 1968 presidential election, where Richard Nixon and George Wallace made the United States Supreme Court's "activism" a major political issue and (2) the resignation of Chief Justice Warren as well as several other justices, now President Nixon appointed four new justices, including Chief Justice Warren Burger, to the court during his first presidential term. These new justices were promoted as adherents to a "judicial conservatism" that would discontinue the "revolutionary" and, to many, unsettling change in the constitutional landscape.187 

What did the American people think of President Nixon's judicial appointments? The 1972 election was not a referendum on the judiciary, but for what it's worth, President Nixon won 60.8 percent of the popular vote and carried every state but Massachusetts.188 

Even people who appreciated the Warren Court's decisions eventually admitted the existence of troubling consequences. In 1974, constitutional scholar Leonard Levy wrote: 

The criminal-justice system in this country has been grinding to a halt and is in danger of massive breakdown, but not because of the Bill of Rights or its interpretation by the Warren Court. The fundamental cause is the staggering rise in the number of crimes and the resultant congestion of prosecutorial case loads and court dockets. The Warren Court unquestionably contributed to that congestion by revitalizing old rights and recognizing new ones that prolonged the criminal process from arrest to final appeal. Swift and certain punishment has always been about as effective a deterrent to crime as any our criminal-justice system can provide. The Warren Court, on balance, made a negative contribution in that direction. Its decisions tended to make convictions more difficult to get, verdicts of guilty were difficult to stick, and sentences more difficult to execute.189 

DePaul University's Professor Decker complained in 1992 that the subsequent Burger and Rehnquist Courts "dramatically undercut the Warren Court decisions to such an extent that the 'criminal justice' system has now returned to a law enforcement tool...."190 That may or may not be a good thing, but in any case it raises a larger issue. These chief justices may have preferred to adjust the levers of "fundamental rights" and "compelling state interests" to reach a result more favorable to the interests of prosecutors. But that does not change the fact that the Court continues to dictate a single standard for every jurisdiction in the United States. The problem is not that this Court or that one reached an unreasonable result. The problem is that the American people have been entirely cut out of the process. 

Consider the 1972 case of Papachristou v. City Of Jacksonville,191 in which the U.S. Supreme Court struck down the vagrancy law of the city of Jacksonville, Florida. At issue were the arrests of ten people who had been picked up at various times for crimes including "prowling by auto" and "disorderly loitering" on the street. Jacksonville had on its books the following ordinance: 

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses [90 days imprisonment, a $500 fine, or both].192 

The U.S. Supreme Court held that the law was unconstitutionally vague, that it encouraged "erratic arrests," and that it placed "almost unfettered discretion in the hands of the police." Justice William O. Douglas wrote for the Court: 

The Jacksonville ordinance makes criminal [those] activities which by modern standards are normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make criminal one night's wandering, only the "habitual" wanderer or, as the ordinance describes it, "common night walkers." We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.193 

There's more: 

Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay....They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau.194 

Walt Whitman notwithstanding, the nation saw, as Leonard Levy noted two years later, a "staggering rise in the number of crimes." 

What did the people of Jacksonville, Florida, think of their city's vagrancy ordinance once it was called to their attention? Well, between the time of the arrests that formed the basis for the Papachristou case and the Court handing down its decision on February 24, 1972, the people of Jacksonville did make a change to the language of the ordinance. 

They took out "juggling."195 

Once again, the question is not whether Jacksonville's vagrancy ordinance was a good thing or a bad thing. The question is whether the U.S. Supreme Court has the constitutional authority to tell the people of Jacksonville that they do not need, should not want, and cannot have that law. Before the incorporation doctrine was invented by the Supreme Court, there would have been no question that this was a matter for the Florida courts to decide, in accordance with the provisions of the Florida state constitution. 

It is the incorporation doctrine that prohibits voters in each state from deciding what their law should be on school prayer, flag-burning, topless dancing, loitering, panhandling, unreasonable searches, Miranda warnings, admissibility of evidence, and, at times, the death penalty. It is the incorporation doctrine that turned views on abortion into a litmus test for judges. It is the incorporation doctrine that has put the U.S. Supreme Court at the center of controversy in American politics. 

That might be fine, if anyone in the country had ever agreed to it. Instead, this overwhelming change in the structure of government was made by the U.S. Supreme Court alone, while voters and elected officials looked on, helpless to stop it. 

Or are they? 

If the country so desired, could the incorporation doctrine be reversed? 

Probably not, but let's take a look anyway, just for the sake of argument. 

Article III, Section 2 of the Constitution gives the U.S. Congress the power to make "exceptions" to the appellate jurisdiction of the Supreme Court, meaning Congress can deny the Court the power to review certain kinds of cases.196 This is unlikely to happen as long as the public holds the Supreme Court in higher esteem than the Congress. But it might explain why Chief Justice Warren wanted his opinion in the Brown case published in the newspapers so the public would understand his reasoning. 

Then there's Theodore Roosevelt's solution. But before a president could "put the fear of God into judges," the public would have to be so outraged over Supreme Court decisions that they would support drastic action to shake up the Court. Something like this nearly happened in the 1930s, after the Supreme Court struck down President Franklin Roosevelt's New Deal legislation.197 

Supreme Court justices may be impeached, but let's not start that again. 

If the incorporation doctrine is ever reversed, it most likely will go the way it came, gradually. The Court could someday find itself confronting a difficult Fourth or Fifth or Sixth Amendment case and decide to overrule a Warren Court decision and throw the entire issue back to the states. 

There is precedent for tossing out long-standing precedents. In the 1938 case of Erie Railroad Company v. Tompkins,198 the Court overruled the 1842 case of Swift v. Tyson,199 even though the courts had been applying its legal doctrine for nearly a hundred years.200 Justice Brandeis wrote for the Court, 

[T]he doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, 'an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.'201 

In truth, it's really not possible to think about reversing the incorporation doctrine until the American people take care of some unfinished business with history. 

The U.S. Constitution has never been amended to guarantee racial equality. Civil rights laws have been secured all these years by a tortured interpretation of the Fourteenth Amendment that is, if we're honest about it, not supported by historical fact. In 1866, Thaddeus Stevens suggested that the Fourteenth Amendment should include this language: "All laws, state or national, shall operate impartially and equally on all persons without regard to color or race."202 Until the Constitution says that, or something like it, any attempt to reverse the incorporation doctrine will eventually crash headlong into Brown v. Board of Education and upset an apple cart of decisions striking down racially discriminatory state laws. 

The same problem exists for women's rights. The Equal Rights Amendment which was advocated in the 1970s failed to win approval by three-quarters of the states, and the Constitution has never been amended to prohibit discrimination on the basis of gender. Laws protecting the rights of women are therefore secured in the Constitution by the same creative interpretation of the Fourteenth Amendment's equal protection and due process clauses that protects civil rights. It's a safe bet that the men who framed the amendment in 1866, and the state legislatures that ratified it in 1868, did not intend to prohibit employment discrimination against women. 

What are the consequences of allowing Supreme Court interpretations of equal protection and due process to substitute for plain-language constitutional amendments? There are many, beginning with the politicization of the judicial nomination process. Perhaps no one seriously believes that the Supreme Court would overturn Brown v. Board of Education, but during the 2000 election campaign there was no shortage of people warning that civil rights would be at risk if judges with a conservative legal philosophy were appointed to the federal bench.203 

Another consequence is the voters' loss of control over policy on issues including affirmative action, gay rights, the rights of non-citizens, and age discrimination. Using the same formula that protects civil rights and women's rights, the Supreme Court can decide whether a law--or even a state constitutional amendment--on these subjects is permissible, based on its own determination of fundamental rights and compelling state interests. In the final analysis, the justices are pulling it out of the air, substituting their own judgment for that of voters and elected officials. Every 5-4 decision is an invitation to further politicize the judicial confirmation process. Everything depends on the values of the next person to sit on the Court. 

The solution to this problem is the constitutional amendment. Where there is a national consensus that a right is fundamental and should not be denied by the United States or any state government, the Constitution should be amended to say so, clearly and unambiguously. There is no reason to leave it to chance. 

Really, a Supreme Court justice should be able to retire without the whole country coming unglued about it. 

The argument can be made that the Supreme Court's decisions incorporating the Bill of Rights into the Fourteenth Amendment were born of good intentions, that Americans should not have to rely on their state courts and state legislatures to protect their rights, that even if the Court usurped powers reserved to the states, the positive results have justified the flawed process. One of our former presidents addressed that issue some time ago: 

If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. 

That was George Washington.204 

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