By Douglas V. Gibbs
This morning, in the chatroom of my Constitution Study radio program, one of the listeners (nmaureen) asked, "If the Bill of Rights only applies to the federal government, why did it require 3/4 of the States to pass it?"
The Bill of Rights, or the first ten amendments to the Constitution of the United States, were adopted in 1791. These amendments were included in the Constitution to appease the Anti-federalists who feared that the centralized government being created would violate the rights of the individual, and that the new federal government would be 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.
What was considered to be the most important rights of the citizens at the time were 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 States originally held all governmental powers, but transferred the authorities to the new federal government necessary to protect, promote, and preserve the union. In other words, the States created the federal government through the Constitution, and the States determined which powers the federal government was allowed to have. These limiting principles were for the purpose of 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, as the Constitution indicates in the Preamble.
Statism, which was present even during the time of the founding of this nation, has progressively worked to grow the powers of the federal government, and make the voice of the States and the people more irrelevant with each passing generation. Part of the strategy to achieve this was to convince the people 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. Through the courts the Constitution has been changed, and more specifically, the system has changed into one that applies the Bill of Rights to both the federal government, and the States, despite the original intent of the Founding Fathers for the Bill of Rights to only apply to the federal government.
The Bill of Rights was 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. Any new powers the federal government was to receive was to be only approved by the States, through their ratification of amendments. Amendments are the only legal way to change the Constitution, and the only legal way to grant to the federal government new authorities.
The Bill of Rights was understood, at the time of 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, and even those that reside on the left side of politics will concede such. The Bill of Rights only applied to the federal government, and the States were needed to pass those first ten amendments through a ratification process because it is the States alone that can approve any new powers or limitations placed on the federal government. The States originally granted the federal government its existence, and original authorities, and that concept of being the granters of powers to the federal government is supposed to still be only for 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 assumption that States cannot infringe on our rights as well is correct, but not guaranteed by the Constitution. The concept that the States must respect our rights are addressed in State Constitutions, and it is our responsibility as citizens of our States to ensure the State Governments abide by our wishes in regards to our rights.
-- Political Pistachio Conservative News and Commentary