Myth #12: The Bill of Rights Applies to the States

This is the Twelfth Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

The first ten amendments of to the Constitution of the United States were adopted in 1791. This group of amendments is known as the "Bill of Rights." These amendments serve as an important part of the story of the U.S. Constitution. The first seven articles cover everything that the Bill of Rights address. Without the Bill of Rights the limitations upon the federal government are the same. The anti-federalists, fearful of an intrusive central government, demanded that a Bill of Rights be included in order to ensure that the federal government was adequately restrained. Without the promise of a Bill of Rights designed to clarify the limitations against the federal government, the U.S. Constitution may have never been ratified.

The American concepts of liberty are covered by the Bill of Rights. The series of amendments specifically address the freedoms of religion, speech, and the press, the rights of peaceful assembly and petition, the rights of the people to keep and bear arms, form a "well-regulated militia," the rights to private property, fair treatment for accused criminals, protection from unreasonable search and seizure, freedom from self-incrimination, a speedy and impartial jury trial, and representation by counsel.

The United States Constitution was written for the purpose of creating the federal government, legally transferring some of the powers from the States to the new federal government so as to enable the federal government to function as necessary, and limiting the federal government so that it may not become intrusive on the rights of the States and the people. The Bill of Rights was written to protect the freedom and sovereignty of the States from the potential tyranny of a centralized government. The creation of the federal government was necessary in order to form a more perfect union - one that is protected and preserved by a central government large enough to perform all necessary tasks, while limited enough that it does not turn against the freedoms of the people, and the States. The Bill of Rights was written for the purpose of restraining the lion that was the new federal government, and caging the potential of federal tyranny.

In today's society we have come to believe that the Bill of Rights limits the powers of both the States and the federal government. We have been trained to believe that, even though it was never originally intended by the founders. The process of changing the opinion of the original intent of the Bill of Rights was orchestrated by the courts. The creeping incrementalism used to change our perception regarding the Bill of Rights is known as "The incorporation of the Bill of Rights." The incorporation is the process by which American courts have applied portions of the Bill of Rights to the States through case law, the latest example being McDonald v. Chicago, where the courts erroneously applied the 2nd Amendment to the States.

The Bill of Rights were originally conceived as a limitation only of the federal government. In fact, all provisions of the U.S. Constitution are meant to only apply to the federal government, except where noted otherwise. The States, having original authority over all powers, were to be left free to legislate as they deemed fit regarding the authorities they retained.

The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights. While even the most liberal historian will agree that originally the early articles of the Constitution were designed to only apply to the federal government, they will use the intricate web of case law, and the 14th Amendment, to explain why they believe the application of those articles have changed over time.

The Founding Fathers were confident that the people of the States could control their own state officials. Most state constitutions already had a bill of rights. The people did not fear their local governments acting in a tyrannical manner. Their fears were of the new and distant central government.

Originally, parts of the amendments proposed by James Madison did in fact address the States, seeking to limit the state governments with provisions such as, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The parts of the Bill of Rights that sought to be applied to the powers of the States, however, were not approved by Congress.

The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people in today's society struggle with this fact that has been all but forgotten under a barrage of court cases. The fact is, prior to the incorporation of the Bill of Rights to the States by the courts, the Bill of Rights did not apply to the states.

The argument used, despite original intent, that the Bill of Rights also applies to the States is based more on philosophy, than historical evidence. One of the philosophical standpoints used is that 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 unalienable, then state governments do not have the authority to infringe on those rights no more than can the Federal government.

The argument, however, simply suggests that the Bill of Rights ought to apply at the state level, not that it originally did.

So, if the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the state level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States. The change was done by judicial means, meaning that the Constitution has been changed by judicial activism. The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process. Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally.

The Fourteenth Amendment is debated as being the source and authority of incorporation. Whether or not the clauses of the Fourteenth Amendment makes The Bill of Rights apply to the States is one of the longest-lasting debates involving interpretation of the U. S. Constitution. The Supreme Court's first ruling regarding the scope of the Fourteenth Amendment, and if the amendment enables the Bill of Rights to be applied to the States, was rendered in The Slaughterhouse Cases just five years after the ratification of the Fourteenth Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause to be the authority they needed to enforce The Bill of Rights against the States. Subsequent cases also used the Due Process Clause as an authority for incorporation. During the early twentieth century a number of court cases, using the arguments referencing the Fourteenth Amendment, began selectively incorporating some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.

The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights were originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.

-- Political Pistachio Conservative News and Commentary