Tuesday, October 21, 2008

Bill of Rights


It is normally taken for granted that the Bill of Rights should apply at both the national and the state level. President Obama has said as much with reference to the abortion issue, the right of privacy and a number of other key issues. Maybe that is correct. Our courts have certainly decided to apply the Bill of Rights in this way. But surely everyone can agree that in its original context the Bill of Rights only applied on the federal/national level and not the state level.

Well, not quite everyone.

Once I was asked to teach the Constitution and the Bill of Rights to some 12th grade students. In the curriculum I was writing I intended to make it clear that originally the Bill of Rights applied only on the federal level. (This was a very important point for a strong
anti-federalist like myself.) I was preparing to tell the students that the Bill of Rights was originally not a guarantee of individual freedoms at all but a limitation of federal authority.

Two of my supervisors took exception to this and asked me to expunge it from my curriculum. While they granted that I may be correct in the case of the 1st and 10th amendment, they suggested that with regard to the others, it is far from certain that they were originally only intended as a limitation of national authority. They therefore asked me to take a neutral position and teach both sides.

I was happy to do that. However, I soon encountered a problem. I couldn’t find any sources which argued that the Bill of Rights was originally intended to apply at the state level. How could I teach both sides if all the sources were unanimous that the Bill of Rights originally did NOT apply on the state level? I picked up a public school civics textbook, titled Government By the People, hoping that it would give me another perspective. “Note” it said, “that the Bill of Rights literally applies only to the national government, not state governments. Why not the states? The framers were confident that states could control their own state officials, and most state constitutions already had bills of rights. It was the new and distant central government the people feared.”

Hmm, I thought, I’m not finding anything on the “other side.” I soon struck on an idea: I would try to internet. Almost any opinion – never mind how erroneous – can be supported somewhere on the internet. I started with Wikipedia, which is usually pretty good at giving two sides to every question. I read the following in their
entry on the Bill of Rights:

“Originally, the Bill of Rights applied only to the federal government and not to the several state governments. Parts of the amendments initially proposed by Madison that would have limited state governments (‘No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.’) were not approved by Congress, and therefore the Bill of Rights did not appear to apply to the powers of state governments. Thus, states had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided 'security against the apprehended encroachments of the general government—not against those of local governments.'"

Next I turned to a number of other websites, and they were all unanimous. At a website that my supervisor had referred me to (
http://www.usconstitution.net/) I read that, “The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states.”

Oh dear, I thought, I’m not getting anywhere at finding sources for “the other side.”

So I wrote to a lawyer friend who had been trained under liberal law professors. He wrote back and said it was “silly to try” to find any sources maintaining that the Bill of Rights originally applied to the states. “I learned this stuff from confirmed liberal law professors who certainly would have included such sources had they been available” he said.

So I emailed one of my supervisors to see if he had any sources to offer. Unfortunately he did not because his argument was philosophical rather than historical. He told me that from a philosophical standpoint, if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and happiness which in turn are considered to be God-given and inalienable, then what gives the state government the authority to infringe on that when the Federal government cannot?

Okay, I thought, but if that proves anything it is that the Bill of Rights ought to apply at the state level, not that it originally did. I then struck on a new course. I would find out exactly when the Bill of Rights changed to become something that was applicable on the state level. That would remove the issue beyond any controversy by making it a factual judicial rather than a hermeneutical question about authorial intent. The results of this research was very interesting, and my supervisors accepted it, even though I still had to write into my curriculum that “there has also been debate about whether the Bill of Rights originally applied to state governments or just federal government.” Following is a chart of what I discovered. What is interesting is that in every case, the incorporation of the Bill of Rights into state law came comparably late in the history of our republic.
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Public use and just compensation for the taking of private property by the government
Bill of Rights Amendment 5
Incorporated into state law in 1897
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Freedom of speech
Bill of Rights Amendment 1
Incorporated into state law in 1925
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Freedom of the press
Bill of Rights Amendment 1
Incorporated into state law in 1931
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Fair trial
Bill of Rights Amendment 6
Incorporated into state law in 1932
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Freedom of religion
Bill of Rights Amendment 1
Incorporated into state law in 1934
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Freedom of assembly
Bill of Rights Amendment 1
Incorporated into state law in 1937
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Free exercise of religion
Bill of Rights Amendment 1
Incorporated into state law in 1940
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Separation of religion and government
Bill of Rights Amendment 1
Incorporated into state law in 1947
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Right to a public trial
Bill of Rights Amendment 6
Incorporated into state law in 1948
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Right against unreasonable searches and seizures
Bill of Rights Amendment 4
Incorporated into state law in 1949
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Freedom of association
Bill of Rights Amendment 1
Incorporated into state law in 1958
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Exclusionary rule
Bill of Rights Amendment 4
Incorporated into state law in 1961
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Ban against cruel and unusual punishment
Bill of Rights Amendment 8
Incorporated into state law in 1962
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Right to counsel in felony cases
Bill of Rights Amendment 6
Incorporated into state law in 1963
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Right against self-incrimination
Bill of Rights Amendment 5
Incorporated into state law in 1964
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Right to confront witness
Bill of Rights Amendment 6
Incorporated into state law in 1965
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Right to privacy
Bill of Rights Amendments 1,3,4,5,9
Incorporated into state law in 1965
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Right to impartial jury
Bill of Rights Amendment 6
Incorporated into state law in 1966
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Right to a speedy trial and to compulsory process for obtaining witnesses
Bill of Rights Amendment 6
Incorporated into state law in 1967
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Right to jury trial in nonpetty cases
Bill of Rights Amendment 6
Incorporated into state law in 1968
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Right against double jeopardy
Bill of Rights Amendment 5
Incorporated into state law in 1969
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