tions; when the effect is to fetter and degrade the state governmentsnby subjecting them to the control of Congress” andnwould constitute “this court a perpetual censor upon all legislationnof the States.” hi less than 20 years, however, the Courtnreversed itself and took up the “perpetual censor” role it enjoysntoday.nThe 14th Amendment was also the wedge for applying thenrestraints of the Bill of Rights on state and local governments.nAdopted in 1791, the Bill of Rights prohibited the federal governmentnfrom interfering with specified inalienable rights, suchnas the freedoms of speech and religion. The Bill of Rights didnnot limit the power of the states. The state constitutions andncourts, from 1791 to 1937, determined the extent to which anstate would enjoy free speech and religion and the other Bill ofnRights provisions. Theoretically, a state could have adopted anstate religion or established procedures to suppress free speech.nOr it could have taken its citizens’ property without compensation.nNo state, of course, wanted to do those things; the peoplendid not desire self-imposed tyranny. Each state’s constitutionnprotected against those things. Before the 1937 federal judiciaryntakeover, America was a constitutional democracy. Then14th Amendment broke up the old system; it required thenstates to afford to their citizens “due process of law” and “equalnprotection of the laws,” as found by the federal judiciary. ThenSupreme Court, in the 1937 decision in Palko v. Connecticut,nbegan to “incorporate” the Bill of Rights provisions into then14th Amendment through the due process clause. This meantnthe Bill of Rights, after 1937, applied to state and local governmentsnto whatever extent’the federal judiciary determined. Incorporationnadded more vague words—freedom of religion,nfreedom of speech, right of assembly, unreasonable searches,ndouble jeopardy, self-incrimination, and liberty and due processnto the vague words of the 14th Amendment—property,nliberty, due process again and equal protection. Beginningnaround 1890, the Court used these indefinite words to defeatnmajority positions and to throw out state social and economicnlegislation such as child labor laws. It used the theory that freedomnof contract was part of “liberty” and could not be takennwithout due process. Under severe pressure from Franklin Roosevelt,nthe Court abandoned this line in 1937. But it immediatelyndeveloped a new and more intrusive theory—that while itnagreed to restrain itself on economic regulation, it would notnrestrain itself with respect to what it called “personal” rights.nThe Court argued that “personal” rights found in the Bill ofnRights were more important than property rights. Ever sincenPalko extended the Bill of Rights to state and local government,nthe Court has been able to enforce broad concepts such as freedomnof speech, as it interpreted them, against a state and localnmajority and against the national majority.nThe Court’s power, and federal power, were originally heldnin place by a series of specific barriers as well as the principlesnof federalism and the separation of powers. During the I9thncentury, the central government, largely because of the CivilnWar, gained substantial powers, but the specific barriers thatnlimited it were not directly challenged. They were challengednand began to fall in the I920’s; by the late I930’s and eariyn1940’s they were falling fast; and by the 1960’s they were gone.nThe old barriers were: (1) Defined Powers—^The Foundersnmade it very clear that the national government was grantednonly defined powers and the states reserved all the powers notngranted. This barrier collapsed with the Court’s 1923 decisionnin Massachusetts v. Mellon, determining that the spendingnpower was not limited to acting in aid of a specified power butncould be in aid of the “general welfare” clause. (2) The CommercenClause—One of the defined powers given to Congress isnthe power “to regulate commerce” between the states. Hownexpansively could you read that? In the 1942 case Wickard v.nFilburn, the Court held that a farmer growing wheat for hisnfamily had an effect on interstate commerce which authorizednregulation of his planting. The Court also held that the commercenpower can even be used to regulate matters with slight ornno apparent relation to commerce, such as the transportationnof plural wives across state lines by Mormons {Cleveland v.nU.S.) and racial discrimination in motels, local restaurants, andnrecreation parks (on the grounds that the food served had ingredientsnfrom other states).nhe Founders’npurpose was to as­nsure that any lawnwould be fully considered and supportednby public consensus. The process is sup­nposed to be very hard, and normally re­nquires a good deal of compromise. If anmajority is not satisfied with the results, itncan always refuse to return the represen­ntative who voted for it, something it cannnever do with a federal judge.nAt first, the Court acted with the support of the majority.nThe majority wanted the government to ameliorate the Depressionnand, in the 1950.’s, to end discrimination. Perhapsnthere was enough popular support to push through needednconstitutional amendments to authorize the action. Perhapsnthere was not. The Court, by interpretation, extended the nationalnmajority’s power without amendment. The Court assumednthe de facto power to amend the Constitution withoutnsecuring ratification from three-fourths of the states. Thenproblem with such a power is that it can be used as easily tonsubvert majority will as to support it.nUnder judicial review, the social views of the “adversarialnculture” work their way into constitutional law. In March 1994,nthe Court unanimously overturned a lower court’s judgmentnthat the rap group 2 Live Crew had infringed the copyright ofnRoy Orbison’s 1964 song “Oh, Pretty Woman.” The rap version,nthe Court found, could fall under the fair use doctrine,nwhich allows part of a copyrighted work to be used without permissionnfor purposes of criticism, comment, news-reporting,nteaching, scholarship, or research. The 2 Live Crew versionnchanged the original’s pretty woman walking down the streetninto a “big hairy woman,” “bald-headed woman,” and “two-nnnMARCH 1995/15n