We witnessed the problem with the federal government running roughshod over state and local decisionmaking when protests got out of hand in Charlottesville, resulting in three deaths and at least 33 injuries. Now, some are suggesting there may be a repeat performance in Michigan.

U.S. District Judge Glen Conrad issued an injunction overruling Charlottesville’s decision to move the proposed Unite the Right Rally from Emancipation Park to McIntire Park. The city cited safety and security concerns when it made the decision to grant a permit for the event only if organizers moved the location to the larger park outside of downtown. The Rutherford Institute and the ACLU filed an injunction in federal court arguing the city’s decision to move the rally violated Unite the Right organizer Jason Kessler’s free speech rights. Conrad agreed, relying on the incorporation doctrine to apply First Amendment restrictions on the federal government to the city.

So, the rally went on despite the city’s concerns. It didn’t turn out well.

In a nutshell, a federal judge simply overruled elected representatives who were in the best position to make decisions about a local matter. City officials believed public safety warranted moving Kessler’s rally to another location, and it appears they tried to balance his free speech rights with their concerns about violence. As it turns out, they were clearly correct in their assessment. Had the federal judge not intervened and insisted the rally must go on in Emancipation Park, perhaps three lives would not have been lost.

Now, a similar plot appears to be unfolding in Michigan.

Last summer, the National Policy Institute submitted a request asking Michigan State Univesity to host alt-right figure Richard Spencer at the Kellogg Hotel and Conference Center. The university denied the request. According to MLive.com, MSU president Lou Anna Simon said she consulted with the university police department “which had concluded, in the light of the incidents in Charlottesville, it was highly likely there would be violence if Mr. Spencer were permitted to appear on campus on September 15.”

The NPI has sued Michigan State in federal court on behalf of Cameron Padgett, a Georgia State University student who organizes events for Spencer.

Could this result in a replay of the violence in Charlottesville?

And why does this need to be a federal case?

Article I § 5 of the Michigan Constitution guarantees free speech.

“Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”

So, why doesn’t the NPI challenge the university in state court. That would make more sense.

Local decisions should be made at the local level – by people who understand the dynamics and can balance the various risks. Imposing one-size-fits-all solutions from a central authority can literally get people killed. Local judges and officials are generally better equipped to evaluate local situations and apply the law in a way that represents the will of that particular political society than a politically appointed federal lawyer beholden legal precedents that often evolved in vastly different political and cultural settings.

The problem with incorporation is that it centralizes power and authority in federal courts, and vests federal judges with power they were never intended to wield. During the drafting of the Constitution, James Madison suggested a federal veto on state laws. The idea was soundly rejected. The founding generation did not want the federal government controlling things at the local level. The incorporation doctrine effectively gives the federal government that kind of veto power over not only state, but even local decision-making.

The end result of the incorporation doctrine is monopolization of government and control of your rights at the federal level. This seldom works out well. One-size-fits-all solutions don’t exist. Local people should make decisions on local issues.

Hopefully, we won’t end up with a repeat performance in Michigan.

Mike Maharrey

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