The antagonism displayed by the militarized police force in Ferguson, Missouri, toward the protests and demonstrations by people outraged over the police killing of Michael Brown provides a good opportunity to review constitutional principles, especially the Fourteenth Amendment.
We begin with the Constitution itself. When it called the federal government into existence, it simultaneously limited its powers to those enumerated within the document, along with any implied powers that were necessary to carrying out the express powers.
Why did the Framers limit the powers of the federal government rather than simply permit federal officials to do whatever they felt was necessary, important, and beneficial?
One reason is because they knew that if they proposed a federal government with unlimited powers, our American ancestors would never have approved it. In that case, the Constitution would not have been ratified and we would still be operating under the Articles of Confederation, which provided for a federal government of very weak powers.
Another reason is that the Framers were on the same page as the American people. They didn’t trust federal officials with unlimited power. They believed that if federal officials were given unlimited power, they would use such power to oppress the American people, such as by prohibiting them from protesting government policies or by punishing for doing so. After all, that’s what governments with unlimited power have done throughout history.
It was that severe distrust of government power that was behind the idea of using the Constitution to limit the powers of the very federal government that the Constitution was calling into existence.
But even that wasn’t good enough for our American ancestors. They wanted to make certain that federal officials got the point. That’s why they demanded that the Constitution be amended immediately after it was approved.
The First Amendment prohibits federal officials from, among other things, infringing on freedom of speech, the right to peaceably assemble, and to petition government for redress of grievances.
Why did our American ancestors want such protections to be expressly stated? The answer is simple and straightforward: They were convinced that federal officials would inevitably do the things that were being expressly prohibited in the First Amendment. By enacting the First Amendment, our American ancestors were essentially saying to federal officials: Don’t even think about it. Don’t even contemplate taking away people’s right to protest federal wrongdoing.the
The Framers and our ancestors expected the federal judiciary to put the quietus on inevitable attempts by federal officials to violate the terms of the Constitution and the Bill of Rights.
Keep in mind something important here: The First Amendment was a restriction on federal officials, not on state officials. Indeed, the same applies to the Second Amendment and to the rest of the Bill of Rights.
The Constitution certainly did provide some restrictions on state power. For example, the states were expressly prohibited from making anything but gold and silver coins legal tender. But there were no constitutional prohibitions on the states’ infringing on people’s freedom of speech and other fundamental rights expressed in the First Amendment or Second Amendment or, for that matter, the procedural rights and guarantees provided in the Fourth, Fifth, Sixth, and Eight Amendments.
The only protections that people had against state infringement on freedom of speech, freedom of religion, freedom of the press, the right to keep and bear arms, and other such rights lay in state constitutions. But if a state constitution failed for provide such protections, the states were empowered to do whatever they wanted to deprive people of freedom of speech and other fundamental rights, and there was nothing the federal judiciary could do about it.
That all changed with the adoption of the Fourteenth Amendment to the U.S. Constitution. It provided that no state could deprive any citizen of life, liberty, and property without due process of law. The U.S. Supreme Court ultimately held that the due process of law clause incorporated the rights and guarantees provided in the First Amendment. The Fourteenth Amendment applied the prohibitions that had previously been limited to the federal officials to state officials and ensured that such rights could be protected by the federal judiciary.
The Bill of Rights and the Fourteenth Amendment help to remind us of the wisdom, insight, foresight, and courage of the Framers and of our American ancestors. They understood that government at both the federal and state level inevitably attracts the type of people who hate liberty and love power.
How right they were back then. And how right they have proven to be today. How those militarized cops are reacting to those protestors and demonstrators is bad enough. But imagine what those cops would be doing if they knew that they wielded omnipotent power to do whatever they wanted to people who were protesting their policies and actions. Imagine what they would be doing to people if there was no Fourteenth Amendment to answer to.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.
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