2000 census. Since this count is used torndetermine congressional representation,rnmany Republicans feared statistical samplingrnwould be used to create more districtsrnwhere Democrats could win. JusticernO’Connor correcdy pointed out thatrnthe words of the Constitution expresslyrncall for an “actual” enumerahon for thernpurposes of determining congressionalrndistricts, but the marvel was that fomrnSupreme Court jusHces shll believed thatrnstatistical sampling was permissible.rnThe Wall Street journal, quoting ProfrnJonathan Turley of George WashingtonrnUniversity, noted that one might say,rnbased on recent Supreme Court decisions,rnthat the “federalism revolution”rnwas under way. I’urlev was my law student,rnso I believe him to be a particularlyrnastute court critic, but the “federalismrnrevoluhon ‘ still has not succeeded. AnthonyrnLewis has not really seen anyrn”radical” behavior yet. What would bernradical? When will the “federalism resolution”rnbe won?rnIf real state sovereignty, as contemplatedrnby the Framers, is actually to be restored,rnit would require the abandonmentrnof the “selecti e incorporation”rndoctrine, by which die 14th Amendmentrnhas been read bv the Supreme Court tornimpose the restricHons of bits and piecesrnof the first eight amendments on thernstates. The Bill of Rights, the first tenrnamendments to the Constitution, was designedrnbv its framers to be a safeguardrnagainst the federal goxemment, becausernof the fear that a federal leviadian wouldrnobliterate state and local governments.rnSince die 1920’s, however, the SupremernCourt has concluded that the HtlirnAmendment’s prohibitions diat no staternshall deprive any person of the “equalrnprotection” of the laws, or that no staternshall depri e an- person of life or libertyrnwithout “due process,” means, somehow,rnthat state actions are subject to nullificationrnby federal courts in matters of speechrnand press, in the administration of criminalrnlaw, in state educational programs,rnand in state laws regarding contraceptionrnand abortion —all areas die original understandingrnof the Constitution and thernBill of Rights u ould have marked out asrnthe province of tlic states, not the federalrngovernment. It may be true that thernSupreme Court has begun to understandrnthat the Constitution “doesn’t permitrnBOOK OF NEXT MONTHrnIn response to constant requests forrnrecommendations on books, the editors ofrnChronicles have decided to try the experimentrnof recommending a book for the followingrnmonth. In some cases, the reeonrmended workrnwill have a direct connection with the subject of thrnissue; in other eases, the link will be more tenuousrnWe will set aside space on our website,rnwww.chromclesmagazine.org, for comments andrnresponses from readers, and we shall try tornanswer any questions of generalrninterest.rnSophocles’ Antigone is the work for Oc^rntober: a short play that exhibits the conflictsrnbetween the individual and the state, religionrnand government, the wisdom of this worldrnand the everlasting lav’s of the divine world.rnRead anv translation except the error-riddenrnvolume in the Universit)’ of Chicago series.rnSir Hugh Lloyd-Jones’s recent Loeb volumern(Creek and English on facing pages) fromrnHarvard is accurate and readable, and thernFitts and Fitzgerald crsion, though free tornthe point of recklessness, isrndramatically effective.rnCongress to order the states around willynilly,”rnbut while the “selective incorporation”rndoctrine survives, it will remain truernthat the Supreme Court and the otherrnfederal courts can do just that.rnThere is a slim historical foundationrnfor both the “selective incorporation”rndoctrine and the “total incorporation”rnidea promoted by the late SupremernCourt Justice Hugo Black. At the time ofrnthe passage of the 14th Amendment, onernfranier of that amendment. CongressmanrnBingham of New York, stated his beliefrnthat the “Bill of Rights” should protectrnstate citizens, and one other framer.rnSenator Howard, did actually claim thatrnthe text of the amendment was designedrnto extend the protections of the first eightrnamendments against the state governments.rnBut the 14th Amendment doesrnnot make this point expressly, and thernwords that amendment uses —”privilegesrnand immunities,” “equal protection,”rn”due process” — appear to have otherrnconnotations. There is precious litde, ifrnany, contemporary evidence that thernstate ratifiers of the 14th Amendment understoodrnthat it was to work the radicalrndeconstruction of federalism that thernSupreme Court has accomplished overrnthe last 60 years in its “selective incorporation”rndecisions. A few legal and constituhonalrnhistorians —Raoul Berger is thernmost prominent example—have recentlyrnrailed against the “selective incorporation”rndoctrine, and it vas subject to powerfulrnacademic criticism a generahon orrnso ago. Not one member of the Court’srncurrent “conservatixe” bloc has suggestedrndoing away with the doctrine, however,rnand until that happens Mr. Lewis is simplyrncr)ing “wolf”rn— Stephen B. PresserrnEDMUND BURKE observed, tworncenturies ago, that “The power of perpetuatingrnour property in our families is onernof the most valuable and interesting circumstancesrnbelonging to it, and thatrnwhich lends the most to the perpetuationrnof societ- itself”rnIn other words, all you grabby socialists,rnyou confiscators of inherited property,rnkeep your cotton-picking hands offrnother folks’ hard-earned goods. Not thatrncongressmen listen attentixcly to deadrnIrishmen. This is one main reason thernexactions of the estate tax remain so sharprnand painful; more so, these days, for thernmiddle-class than for the mcga-ricli, withrntheir mega-priced law’ers.rnSEPTEMBER 1999/7rnrnrn