even greater jurist than Jolin Marshall, declared (almost certainlyrnincorrectly) that the 1787 Constitntion did not embracernan’ social theor)—neither that ai laissez-faire nor of the organicrnstate. Holmes’ admirers, most prominently at the lawrnschools of Harvard, Yale, and Columbia, soon pnt together a legalrnphilosophy, if one can call it that, known as “Legal Realism.”rnThe Legal Realists developed Holmes’ agnoshc disdainrninto a broader set of notions that there are no hard and fast rnlesrnto the law, and that the decisions of courts are best recognizedrnas social products of their times or of the preferences of individualrnjudges. The Legal Realists dismissed the legal philosophyrnof the Kramers—that there are certain eternal, noble, andrndivinely inspired principles which form the essential foundationrnof the law and the Constitution —as so much sentimentalrnnonsense.rnPresident Franklin D. Roosevelt found the ideas of LegalrnRealism to his liking, and with the Deniocrahc majorities inrnCongress in the 1930’s, he remade the nature of the federalrngovernment without benefit of constitutional amendment. Atrnfirst the Supreme Court resisted, but after the smashing Rooseveltrnelectoral victories of 19?2 and 1936 and Roose’elt’srnthreat to pack the Court with his appointees, it suddenly reversedrnitself hi major decisions in 1937, in what was later to berncalled the “Constitutional Revolution” (and might have beenrnas aptly labeled the “Constitutional Abandonment”), thernSupreme Court declared that Congress, through its power tornregulate interstate commerce, could impose collective bargainingrneven on businesses carried on within a state, and that itrnwas perfecdy appropriate for states to regulate wages and hours,rnat least for women. Freedom of contract, it seemed, was deadrnas a conshtutionally mandated ])rinciple.rnOne new precedent in faor of centralized power can easilyrnsweep aside ten old ones against, and over the next 30 years, thernfederal courts permitted the interstate commerce power to bernused to regulate areas as diverse as state v^’heat production andrnracial discrimination in restaurants and motels. Even morernoutrageously, what could not be done directh- b’ federal legisladonrnunder the interstate commerce power could soon be accomplishedrnindirecdy by the federal courts’ interpretation ofrnthe 14th Amendment.rnPassed after the Ciil War, the 14th Amendment was originallyrndesigned to allow newly freed slaves to own properhrnand to make contracts. But it became a tool, in the hands ofrnmid-20th-century federal courts, to impose a centralized, secularized,rnand egalitarian social vision on the entire nation.rnFreed of the restraints of religion and tradition tiiat the pre-rnLegal Realist jmisprudence had embraced, judges weanedrnon Legal Realism or Holmesian skepticism rewrote the 14thrnAmendment in the same manner that the New Deal Courtrnhad rewritten the Commerce Clause. Federal judges began tornread the 14th Amendment provisions that no state should bernpermitted to deprive any person of the “equal protection of thernlaws” nor to deprive any person of life, libert)’, or propertv’ w ithoutrn”due process” as a license to turn the restrictions of the Billrnof Rights against the states and to set up strict rules about whichrnstate policies were permissible and which were not. Witii thernscantiest evidence, and in the face of overwhelming data to therncontrar)’, the Supreme Court declared that the 14th Amendmentrnwas designed to “incorporate” at least some, and perhapsrnall, of the protections of the Bill of Rights against state governments.rnThere is no doubt that the Bill of Rights, the first ten amendmentsrnto the Constitittion, had been drafted in the late 18thrnccnhin’ in order to reassure the proponents of strong state governmentsrnthat the federal government would not infringe onrnthe sovereignt)’ of the states or their people. Without even acknowledgingrnthe usurpation, the federal courts turned the BillrnIt may be too late to save staternsovereignty and the originalrnintention of the Constitution. Perhapsrnnothing short of a new constitutionalrnconvention, or at least a slew ofrncorrective constitutional amendments,rnwill restore some semblance ofrnstate sovereignty.rnof Rights into a tool to reduce radically the discretion of thernstate governments.rnThe First Amendment clearly provides, for example, thatrn”Congress shall make no law abridging the freedom of speechrn. . . or regarding an establishment of religion,’ but the congressionalrnprohibition was soon read—blatantiy contrary to the intentionrnof the framers of the Bill of Rights, if not of those of thern14th Amendment itself—to extend to state legislatures and officialsrnas well. The 14th Amendment was used to forbid Biblernreading and prayers in state schools, to dictate permissible policernpracfices by local law-enforcement ofticials, and, in general,rnto mandate educational and penal policy for states andrnlocalities. In the 196()’s, the federal courts, guided by egalitarianismrnand emboldened by the triumph of Legal Realism, orderedrnthat all state legislatures had to be redistricted solely onrnpopulation, even though, for almost two centuries, many statesrnhad emidated the federal government’s model and had an upperrnhouse of the legislature based on traditional political subdi-rnisions.rnIn a final series of judicial social-engineering feats, the 14thrnAmendment’s Due Process Clause was read to bar any state orrnlocalih- from interfering with unenurnerated “privacy rights,”rnincluding the right of married adults to purchase contraceptivesrnand the right of women to secure first-tnmester abortions.rnThe Supreme Court stopped just short of declaring that thern14th Amendment prohibited any state from enforcing lawsrnagainst consensual sodomy, but the Court did declare, on thernbasis of the I4th Amendment, that no state could prohibit anyrnof its localities from forbidding discrimination against homosexuals.rn’I’o this day, no one has been able successfully to reconcilernthe two holdings—they stand as an affirmation of the triumphrnof Legal Realism.rnWhen Ronald Reagan came to power in 1981, he swore hern14/CHRONICLESrnrnrn