How the First Amendment Came to Protect
Topless Dancing
By Susan Shelley
The Los Angeles City Council voted 10-0 recently to
shut down a Tarzana nude bar, but the council is baying at the moon, so to
speak.
The Frisky Kitty has a constitutional lawyer and a
First Amendment argument and it's not going anywhere.
This would have shocked James Madison, and not because
of the lap dancing. The man who's been called the "Father of the Constitution"
tried to persuade the First Congress to adopt an amendment that would have
prevented the states from abridging freedom of speech. Rep. Madison's amendment
was defeated.
The fact is, the First Amendment's guarantee of freedom
of speech and the press did not apply to state and local governments at all.
It was a limitation only on the powers of the U.S. Congress.
Thomas Jefferson wrote in 1804, "While we deny that
Congress have a right to control the freedom of the press, we have ever asserted
the rights of the states, and their exclusive right, to do so."
Even after the Civil War, when the new 14th Amendment
barred any state from denying any person due process of law, the Bill of
Rights did not apply to the states.
In 1900, the U.S. Supreme Court held in the case of
Maxwell v. Dow that the first 10 amendments to the Constitution "were not
intended to and did not have any effect upon the powers of the respective
states," adding dismissively, "This has been many times decided."
In 1947, Justice Hugo L. Black argued (in dissent)
in the case of Adamson v. California that the framers of the 14th Amendment
did in fact intend to make the Bill of Rights apply to the states, but his
analysis was pounded into the ground two years later by legal historian Charles
Fairman.
Justice John Marshall Harlan wrote in 1968, "The
overwhelming historical evidence marshaled by Professor Fairman demonstrates,
to me conclusively, that the Congressmen and state legislators who wrote,
debated, and ratified the 14th Amendment did not think they were 'incorporating'
the Bill of Rights."
How did we get here?
It's a long story, but here's the short version: Over
the course of the 20th century, the justices of the U.S. Supreme Court gradually
incorporated the provisions of the Bill of Rights into the 14th Amendment's
"due process" clause by declaring that each of the rights was "fundamental"
to the conception of due process of law.
The court held, in landmark case after landmark case,
that a fundamental right could not be infringed by a state unless there was
a compelling reason -- not merely a rational reason -- to do so.
The "incorporation" of freedom of speech dates to
the 1925 Gitlow v. New York case, when the court said, "For present purposes
we may and do assume that freedom of speech and of the press -- which are
protected by the First Amendment from abridgment by Congress -- are among
the fundamental personal rights and 'liberties' protected by the due process
clause of the Fourteenth Amendment from impairment by the States."
By 1991, this assumption had led the Supreme Court
to consider whether an Indiana law requiring dancers to wear pasties and
G-strings was a violation of the First Amendment. The justices ruled 5-4
that it was not, applying a complicated four-part test designed to determine
if the state's need for the law was compelling enough to justify an infringement
on the dancers' right of free speech.
It doesn't take a Philadelphia lawyer to see that
with four justices dissenting from this decision, the outcome of the next
topless dancing case could be different.
That's the problem with the incorporation doctrine.
Judgment calls that once belonged to local voters have been seized by the
U.S. Supreme Court, which will never have the time to determine the necessity
and appropriateness of every state and local law.
That leaves every local government in the country
vulnerable to paralyzing litigation and prevents voters from exercising powers
that the framers of the Constitution and the 14th Amendment plainly reserved
to them.
© Copyright 2002 by Susan
Shelley
This article first appeared in the Los Angeles
Daily News on March 17, 2002.
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