Skip to comments.At 217, Bill Isn't What He Once Was
Posted on 12/16/2008 12:15:09 AM PST by history_48
by Gina L. Diorio
On this day in 1791, Virginia became the tenth state to ratify the Bill of Rights, thus giving the document the requisite two-thirds approval among the states and making it the law of the land. A concession to the vocal anti-federalists whose memory of British tyranny was all too fresh, the Bill of Rights was intended to outline specific restrictions on the power of the central government and to codify certain rights, freedoms, and protections for the people of the young nation.
Today, the Bill of Rights serves as the default argument for everything from the right to put nativity scenes on state or local public property (freedom exercise of religion) to the prohibition against doing so (so-called “separation of church and state” – the elusive phrase which, incidentally, appears nowhere in the Constitution). Correctly interpreted, however, the Bill of Rights only accurately serves one of these arguments, and this is because of a fact little-known by many Americans – and one which, had it been recognized and upheld by the Supreme Court, would drastically alter many Bill-based assertions.
That fact is simply this: the Bill of Rights as presented by Congress and ratified by the states was never intended to apply to state governments. Rather, when it came to restricting the powers of government, the Bill of Rights was adopted solely to limit the powers of the central government.
Consider this: when James Madison, who drafted the original articles of the Bill of Rights, proposed the document in a speech to the House of Representatives on June 8, 1789, he recommended placing three specific restrictions on state governments. Madison stated: “I should therefore wish to … add … that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases.” Congress, however, rejected these state-focused provisions.
Perhaps more telling that what is not included in the Bill of Rights, however, is what is included in the preamble to the Bill of Rights, which states:
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.
In other words, the Bill of Rights was the answer to the concern of several states that the federal government would overstep its bounds.
The Supreme Court confirmed the Bill of Rights applied only to the federal and not the state governments in the 1833 case of Barron v. Baltimore, in which the Chief Justice John Marshall, delivering the opinion of the Court wrote:
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 to 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.
The Court reaffirmed this decision twelve years later in the 1845 case of Permoli v. New Orleans and again in 1866 in the case of Pervear v. Massachusetts. Not until the adoption of the Fourteenth Amendment two years later in 1868 did the matter of applicability to the states begin to take hold. At issue was Section 1 of the Amendment, which reads in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive an person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)
As attorney Martyn Babitz writes in his book, The Illusion of Freedom: How to Restore the True Constitution and Reclaim Liberty Now,
This text essentially copies verbatim a portion of the Fifth Amendment included in the Bill of Rights: “ Nor shall any person … be deprived of life, liberty, or property, without due process of law.” The necessity of including the exact text from this portion of the Fifth Amendment … in the Fourteenth Amendment in order to make it applicable to the states provides additional compelling evidence that the Bill of Rights applies to the federal government alone.
However, as Babitz notes, beginning in 1938 with the Supreme Court case of United States v. Carolene Products Co., the Court began to take another view, and a footnote to the majority opinion in that case reads:
There may be narrower scope for operation of the presumption of constitutionality [of state law] when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
Justice Hugo Black echoed this misinterpretation in 1947 in the case of Adamson v. California, in which he wrote in his dissenting opinion:
One of the chief objects that the provisions of the [Fourteenth] Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of Right applicable to the states.
And in the 1968 case of Duncan v. Louisiana, Justice Black, concurring with the Court’s majority opinion, wrote:
In closing I want to emphasize that I believe as strongly as ever that the Fourteenth Amendment was intended to make the Bill of Rights applicable to the States.
Even if this were the intent – a view not easily substantiated – judicial interpretation is not an acceptable constitutional requisite for fundamentally altering the core of the Constitution. Unfortunately, the decision by black-robed appointees to do just this continues to produce nationwide repercussions, as today the Fourteenth Amendment "is cited in more litigation than any other amendment" (source: Library of Congress).
For just one example of the impact of these citations, return for a moment to the original scenario of the Bill of Rights’ serving as evidence both for and against a public display of a nativity scene. In protecting the freedom of religion of all Americans (including those serving in public office), the Bill of Rights correctly allows for such a display. Correctly applied, however, the Bill of Rights does nothing to prohibit such a display on state or local public grounds – this decision is left in the hands of the states. (And for those considering arguing this point, note that the early constitutions of several states openly supported religion.)
Unfortunately, the misapplication of the Bill of Rights has not only done a disservice to the labor of our Founding Fathers but has also dramatically altered the landscape of federal-state – and federal-citizen – relations as envisioned and enumerated by the framers of the Constitution.
Today may be the 217th anniversary of the passage of the Bill of Rights, but as long as judicial appointees continue to assign the document a scope never intended for its own, the Court will be practicing the very encroaching power the Bill of Rights sought to prevent.
Gina L. Diorio is a full-time freelance writer. Please visit her website at www.LibertyWritingSolutions.com.
I agree with the premise of the historical record. However, I do have a bit of a hard time allowing that we need to take the Bill of Rights away from the people in the various states. It would seem a right best left untampered with in many cases.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Article. V. - Amendment
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Sad when such an article can not even get the basic facts right .....
States rights issues were dealt a blow by Lincoln in the Civil War, unfortunately...
“Sad when such an article can not even get the basic facts right .....”
Yeah, I noticed that, as well.
“States rights issues were dealt a blow by Lincoln in the Civil War, unfortunately...”
Lincoln was vehemently opposed to states retaining any real sovereignty; he was strongly in favor of a large and all-powerful federal government, not a union of equal states as was the intent of the Founders. Lincoln was a despot, and his fellow Illinoisan who is set to take the oath of office on January 20, 2009 is, as well.
it is evident that [a bill of rights] would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.
IMHO that is what has happened with the First Amendment and the right of the people to spend their own money to avail themselves of technological means to promote their own (political, religious, and other) opinions.
We have the spectacle of the members of a monopolistic organization, the Associated Press - an institution not even extant at the framing of the Bill of Rights nor even in the entire lifetime of James Madison (1751 1836) - declaring themselves alone to be "the press" protected by the First Amendment. And successfully promoting "campaign finance reform" laws to denigrate the rights of the rest of the people on that basis.
Each law more onerous than the last - and with the author of the latest, John McCain, announcing shortly after its passage that McCain-Feingold was not restrictive enough!
Ping to my #8.
McCain’s premise was that the people should be limited in the ways that they could corrupt “honest” politicians. He restricted the citizens far more than he increased the accountability of the politicians. It was a bill designed to protect politicians and restrict free speech.
I have no respect for John McCain. What he did to our laws negated the respect he earned from his military service. He’s just another opportunistic politician who craves media attention.
Think of the spot that puts liberals in. Objective news is one thing they would fight.
Your point is well taken. The Federalists argued strenuously against the adoption of the "Bill of Rights" because they thought it was dangerous to enumerate such specificity in the constitution.
Seems that time has borne out both sides of the argument IMO. The Federalists were right that the government would take the stance that "anything not specifically prohibited is allowed". At the same time, the Anti-Federalists were right that without at least those guarantees listed, that government power would get out of hand because there would effectively be no restraints on it.
You see both sides still argued here today on this board of those who think a "right to privacy" is just a "made up" right because it isn't listed in print, and those who point to the 9th and 10th amendments as showing that we have many more rights as human beings that exist whether they are specifically enumerated or now.
Personally, I'm glad the Anti-Federalists won the day. One thing I find to be interesting from a historical standpoint is that most folks know about the Federalist Papers, which were, among other things, an argument against the Bill of Rights, yet few are even aware of the Letters from a Federal Farmer, penned by those who ultimately carried the day.
In my coffee shop "bored meeting" I have been recently arguing that the Fairness Doctrine is welcome if it applies to all reported news as well.
Think of the spot that puts liberals in. Objective news is one thing they would fight.
The great problem is that when the fox is in charge of guarding the chicken coop, he defines "objectivity" for his own convenience. Which is exactly how they fight objectivity - by defining "objectivity" as whatever they want to say.
No, the answer is that the government is not competent to define objectivity, and would not be constitutionally authorized to engage in censorship based on objectivity, even if it actually knew what it was.
Good point. that's just a symptom of general ignorance you'll find anywhere in America today. Ask someone about John Locke, and you'll get blank stares, yet it is entirely arguable that without his writings on government, there would be no American Revolution.
I'd ask that you ask those few you find that know about the Federalist Papers if they're familiar with Letters from a Federal Farmer.
People are woefully ignorant of history. We are certainly an illiterate bunch, and are apparently getting the government we deserve. Those of us who've actually learned from the past can see it coming back around to us. For most of my life I've feared my children will live in a nightmarish existance brought about by the tyranny of the majority. i used to have some hope that the day of reckoning could be avoided or turned aside, I no longer think there is any way to avoid the evil that is coming.
I’ve been looking at the Letters at Constitution.org.
I started donating to the site just last month; it’s a treasury of information.
Next week will see the Founder’s Quotes thread quoting from one of those letters and sourcing it to the rest of the letters.
Is there any letters that you favor?
AND....are you on our ping list for Founders’ Quotes?
might be of interest ping...
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