Editor,

Following the Revolutionary War, as was prescribed in the Declaration of Independence, the crafting of our new general government began. During this process, in simplistic terms, two factions emerged. We refer to these two factions as the Federalists and the Anti-Federalists. Surprising, both groups were largely in agreement with the direction that was being taken. However, it became clear that success would only be had if a formal declaration of rights were included in the process.

The First Amendment is the only amendment within the Bill of Rights that begins with the phrase “Congress shall make no laws.” Do you know why? This is because the rights contained within the First Amendment were reserved to the states, or to the people if their state constitutions were silent on these subjects.

If the above is true, how could the U.S. Supreme Court find that the State of New York had violated Benjamin Gitlow’s First Amendment rights in 1925 (Gitlow v. The People of New York, 268 U.S. 652)? It is because the restrictions on Congress within the First Amendment were applicable to the states when the Fourteenth Amendment was ratified.

According to the Due Process Clause within the Fourteenth Amendment (emphasis added):

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

When the people of a state choose to enact a law through their elected government, it must fall within the framework of their constitutional system in order to be legitimate. States may institute a policy enforcement arm in order to enforce such laws.

What government policy enforcement arm exists to protect us when a state law falls outside of our constitutional framework? I don’t think that there is one. What we do instead is require our elected lawmakers and policy enforcers to swear an oath to uphold our constitution. Given that these state actors are human and subject to failure, how do we ensure that our rights are respected and preserved?

One way we can do this is by exercising our right to petition our government for redress of grievances, which is guaranteed in the First Amendment to the U.S. Constitution. If this approach fails, for whatever reason, we must then defer to federal law.

According to 42 U.S. Code, Section 1983, “Civil Action for Depravation of Rights”:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

This process is undertaken in federal court, and not in state court for the obvious reasons.

So, the next time that you hear that a state and/or state actors are being sued by a citizen, it may be for the previously mentioned reasons. If a state and/or state actors deprive a citizen of their rights, a liability is incurred. This liability must be proven in federal court.

If this process draws your ire, I strongly hope that it is directed towards the guilty party, and not the victim.

Mark Mitchell
Los Alamos