Last week we began examining the Bill of Rights. This week we will address a specific question: was the Bill of Rights intended to apply to the state governments?
Some people argue that it was. They concoct some interesting arguments based on “rules of construction” or approach it through various philosophies of rights and liberty they attribute to the founders. But there simply exists no founding era evidence that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind state governments. In fact, doing so would essentially create a federal veto over state laws, a massive expansion of central government authority – the exact opposite of the stated purpose of including a bill of rights.
Most people have never read the preamble to the Bill of Rights. In fact, a lot of people don’t even know it includes one. The preamble makes the purpose of the Bill of Rights very clear.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the federal government. Notice the word government is not plural. The Bill of Rights makes no mention of state governments. In fact, the state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.
Imagine if somebody from England went before a British court and argued that the Second Amendment gave him the right to own a gun. The judge would laugh him out of the courtroom. The Bill of Rights does not govern in England. Despite the fact that an Englishman has an unalienable right to self-defense, the U.S. Bill of Rights does not prohibit the British government from infringing upon it. England exists as a separate political sphere. A state is no different. Although it has entered a union with the other states as defined by the Constitution, it remains an independent political society, giving up only the powers delegated. Absent specific delegation of power to the federal government authorizing it to police states and force them to abide by its understanding of rights, the power simply does not exist.
Chief Justice John Marshall was an unapologetic advocate for national power, but he explains the limits of the Bill of Rights beautifully in his opinion in Barron v. Baltimore.
The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
Interestingly, when James Madison introduced the Bill of Rights to Congress, he proposed that the equal right of conscience, freedom of the press and the right to a trial by jury should also apply to the states.
I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, &c.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controuled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights.
Congress explicitly rejected applying those particular amendments to the states, making it abundantly clear that the Bill of Rights was only intended to limit federal power.
Many will agree with this analysis, but argue that the 14th Amendment changed all that and incorporated the protections included in Bill of Rights on state governments. Next week we will examine the doctrine of incorporation in detail.