Changing Lanes, Part 3: The Historical, Jurisprudential Shift To Individualism

This is part 3 of a 5-part article.

Read Part 1 Here
Read Part 2 Here

Mediating entities are the glue that holds society together.

For Tocqueville, the “intellectual and moral associations” provided by these mediating entities were so important that “nothing . . . more deserve[d] attention.”

How then did we get to the point in modern Constitutional jurisprudence that the individual’s right to “privacy” and “autonomy” is turning familial ties into mere contracts that can be severed by either party at any time regardless of the impact on the children or society?

How is it that the individual child’s right to “free speech” requires public schools to abandon children to themselves when it comes to virtue and morality?

How is it that the individual’s free-speech right also trumps the rights of families and communities to regulate materials such as pornography that destroy the fabric holding families and communities together?

These questions are not just rhetorical — there is a historical answer.

The idea that certain individual rights should trump the interests of entities such as families, neighborhoods, communities, schools, churches, or states took root in the United States Supreme Court jurisprudence when a “compromise” took place during the New Deal era.

Prior to the New Deal, individual rights were generally protected by the very structure of government itself through federalism, separation of powers, checks and balances, the Tenth Amendment (which states that whatever powers are not specifically delegated to the federal government are reserved to the states and the people thereof) and other architectural mechanisms that limited government’s ability to infringe on individual rights.

However, the black codes and Jim Crow laws created by southern states preceding and continuing through the Civil War era seriously infringed on the rights of individuals of the black race, which sparked national doubt about whether states would actually protect individual rights.

It was during this time period that the Supreme Court began carving a new role for itself as the watchdog that protected against state infringement on individual rights, a role that was made permanent during the New Deal era.

During this time period, Roosevelt proposed legislation that required a powerful and activist central government to combat the economic problems of the Great Depression.

One major problem the legislation posed to the court, however, was that such a centralized government would hamper the structural mechanisms designed to protect individual rights, such as federalism and the Tenth Amendment.

So the Supreme Court compromised.

To compensate for the blow to the structural protections of individual rights suffered during the Civil War era and especially the New Deal era, the court as early as 1937 began assuming a new “preferred-freedoms” approach that called for heightened constitutional protection of select individual rights that were, in the opinion of the Court, “so rooted in the traditions and conscience of our people as to be ranked as fundamental”—and the Court’s role as protector of these rights became permanent.

The Court supplanted structural protection with that afforded by judicial watch care.

In short, the Court’s extraordinary emphasis on individual rights since 1937 is an attempt to compensate for the injury the Court itself inflicted to individual rights by demolishing their institutional safeguards during the New Deal era.

This compromise has had far-reaching effects on national unity.

It adversely impacted not only protections such as federalism and separation of powers, but it seriously wounded mediating entities as well.

The preferred individual rights are often protected at the expense of families, churches, schools, neighborhoods, and other voluntary associations.

Because mediating entities are a primary source of national unity, when mediating entities suffer, the nation suffers.

To be continued…

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James C. Ure, Esquire is a mentor of Constitutional Case Law at George Wythe University and the owner and headmaster of Williamsburg Academy, an accredited, private, online high school with an emphasis in leadership, classical works and the outdoors.

James received his B.A. in English from Brigham Young University and graduated magna cum laude from South Texas College of Law. In law school, James served as President of the Federalist Society, the J. Reuben Clark Law Society and hosted speeches or debates with prominent judges and professors from around the country. He also served on the South Texas Law Review, which published an article of his on the structure and powers of the U.S. Constitution.

He has been a small business owner, clerked for a Texas state court judge and a law firm, and served as an intern in the Utah House of Representatives for the majority whip. He is married to the former Angela Stott. They have three children and reside in Cedar City, Utah.