'Ignorance in High Places'

August 06, 1985

Your editorial reaction (July 11), "Ignorance in High Places," to the recent address by Atty. Gen. Edwin Meese III before the ABA House of Delegates is puzzling.

The accusation that his remarks reveal his ignorance of "history as well as of law" undoubtedly will strike those who have read his prepared remarks as well as those who heard the speech as unfounded. It seems only fair to balance your account by recourse to the text.

The attorney general prefaced the portion of his remarks touching upon the doctrine of incorporation. "In trying to make sense of the religion cases--from whichever side--it is important to remember how this body of tangled case law came about," he said. What followed was a review of the historical development of the idea of incorporation. To argue, as you did, that the attorney general's position "ignores the outcome of the Civil War" displays the sort of ignorance that you too readily attribute to him.

Indeed, it seems your interpretation does considerable violence to the great and noble purposes for which the Civil War amendments were ratified. The purposes of those amendments were, in order: to abolish slavery; to provide Congress with the power to enact civil rights legislation that would reach into the states; and to secure the vote for the freedmen. The records of the 39th Congress simply will not support your contention that the lawmakers intended to make the Bill of Rights applicable to the states.

The evidence is clear that the 14th Amendment in particular was passed to give Congress the power to secure civil rights by legislation; it was generally assumed that the Supreme Court in the absence of such an amendment would find the power of Congress to pass such legislation unconstitutional. There is no doubt that the 14th Amendment altered the original federal balance of the Constitution; but neither is there any doubt that the alteration was intended primarily to expand legislative power, not to empower the court to expand the Bill of Rights by decree.

To the degree to which the attorney general's remarks should be taken as a criticism of the doctrine of incorporation, it is a procedural criticism of means, not a substantive criticism of ends. The question is not one of substantive rights, but of the proper scope and limits of judicial power.

By endeavoring to apply the Bill of Rights to the states in the piecemeal fashion in which the history of incorporation reveals it to have been done, the court has transformed the federal structure far more than was ever contemplated by the 14th Amendment.

The incorporation cases have allowed the federal government to intrude ever more deeply into the daily lives of the people. The issues are complex (as is revealed by the Establishment Clause cases this term) and it is not clear they are soluble by judicial decision. The questions raised by the doctrine of incorporation are the questions of constitutional legitimacy and institutional capacity.

There are many areas in which the states and localities can be trusted to reconcile a due regard for individual liberty with the majority consensus of the community. This is seen most clearly in the recent Establishment Clause cases. The purpose of that clause was to preclude the designation by Congress of an official altar before which each citizen might be made to bow.

Thus, to argue that a state program of secular instruction for low-income students in sectarian schools, provided by public school teachers who were supervised to safeguard students against efforts of indoctrination, violates neither the language nor the intention of the Establishment Clause displays no ignorance of either history or the law. It reveals a deep regard for both.


Washington, D.C.

McDowell is associate director of the Justice Department's Office of Public Affairs.

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