The Supreme Court’s decision in the “Bong Hits 4 Jesus” case highlights a significant flaw in today’s so-called “constitutional law” — the body of judicial precedents supposedly “interpreting” the Constitution. That flaw is the so-called Incorporation Doctrine: the judge-made rule that the justices’ favorite Bill of Rights provisions are enforceable by the justices against the states.
The case at hand involved one Joseph Frederick, a then-18-year-old who held up a sign saying “Bong Hits 4 Jesus” at a school-sanctioned event. As he explains it, Frederick had had a run-in with his principal before and hoped to provoke her again.
The principal confiscated the sign and suspended Frederick from school. His appeal wound up in the Supreme Court.
The Supreme Court in the 1969 case of Tinker v. Des Moines School District held that students in public schools have the right to express their political opinions by wearing armbands in protest, even when school policy forbids it. The question at issue here, seemingly, was whether the message in the “Bong Hits” case was worthy of the same protection as that intended to be forwarded by the armband demonstration.
But what provision of the Constitution, exactly, was at issue here? There are of course two expression-related provisions in the First Amendment: the Speech Clause and the Press Clause. Might one of them apply to the “Bong Hits” facts?
In a word, no. First, “speech” clearly does not include all expression, or else the Press Clause would not be necessary. “Press” clearly does not include all expression, or else the Speech Clause would not be necessary. Frederickson’s behavior was neither speech nor press.
Besides, the First Amendment says that “Congress shall make no law….” The Amendment, in fact the entire Bill of Rights, was intended as a limitation on the federal government, not on the states. The Supreme Court recognized this fact in Barron v. Baltimore (1833), with Chief Justice John Marshall writing for a unanimous Court.
Did the Court get it wrong in Barron? No, it was exactly right. James Madison, the Bill of Rights’ main architect, wrote that the states’ bill of rights proposals all “indicat[ed] a jealousy of Federal powers, and an anxiety to multiply securities against a constructive enlargement of them.”
Federal courts have been in the business since early in the twentieth century, however, of applying various Bill of Rights provisions against state governments anyway, on the basis of a specious reading of the Fourteenth Amendment. The Due Process Clause, the courts have said, “incorporates” Bill of Rights protections of various kinds, and thus makes them enforceable against the states.
Thus, what was intended as a shield against federal power — the Bill of Rights — has become the mechanism for federal judicial encroachment on the states!
Chief Justice John Roberts, in writing for the Court in the “Bong Hits” case, averred that, “It was reasonable for [the principal] to conclude that the banner promoted illegal drug use — and that failing to act would send a powerful message to students in her charge.”
That is a fascinating legislative argument, of course, but has nothing at all to do with the First Amendment’s prohibition on federal infringement of the freedom of speech or the freedom of the press. It has nothing to do, in short, with law.
At least Roberts came to the right conclusion, however: although he exercised legislative judgment, he did not prevent the principal from doing what the state of Alaska had a right to empower her to do.
In dissent, Justice John Paul Stevens scored the majority for inventing “a special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message.” His reference to the First Amendment was actually erroneous, because the Court’s expression-related jurisprudence here rests on the claim that freedoms of speech and press are incorporated into the Fourteenth Amendment’s Due Process Clause.
Why did Stevens forget? Because the argument about the Due Process Clause is not a serious one. The Fourteenth Amendment’s authors did not intend to incorporate Bill of Rights protections into a clause that says a state may not deprive anyone of life, liberty, or property without due process of law. Only judge-made law “interpreting” the Constitution holds to the contrary.
Here, as in so many areas of American life, the federal courts, led by the Supreme Court, have insinuated themselves into an area of law over which they were intended to have no say — an area of policy-making that was supposed to be controlled by elected officials instead. Power over public primary and secondary education clearly was intended to be reserved to the states, not delegated to Chief Justice Roberts and his colleagues.
In acting as if this were not true by presuming to pass on the principal’s behavior in “Bong Hits,” Roberts’ Court has betrayed the people who wrote and ratified the Constitution and Bill of Rights. It has given us government by judiciary instead of government by the Constitution.