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Constitution Class
Handout
Instructor: Douglas V.
Gibbs
Lesson 12
Bill of
Rights: Introduction to, and Incorporation of
Introduction to the Bill of
Rights
The Bill of Rights does not guarantee your
rights, nor was it designed to allow the federal government to protect your
rights. The language used in the first
ten amendments is clear. The 1st
Amendment begins, “Congress shall make no law…”
The 2nd Amendment ends with the words, “…shall not be infringed.” The 3rd Amendment begins, “No Soldier shall…” The key phrase in the 4th Amendment is “shall
not be violated.” The entire Bill of
Rights was designed to confirm what the first seven articles had already
established. The federal government was
granted only certain authorities, and for the purpose of clarity, the Bill of
Rights was written to reinforce the concept that the federal government has no
business infringing upon the rights of the people. The federal government is not charged with
protecting those rights, or guaranteeing those rights, anywhere in the Bill of
Rights. The first ten amendments were
written to tell the federal government, “Hands off, do not touch, thou shalt
not.”
The concept that the federal government exists
to guarantee our rights, or protect our rights, emerged after the ratification
of the 14th Amendment. The Civil War
Amendment tasked the federal government with ensuring the newly emancipated
slaves were treated fairly, and that their rights were protected – even at the
State level. In an effort to capitalize
on that idea, the courts got involved to ensure that the former slave States
behaved. The southern States, the North
was convinced, could not be trusted, and often the South confirmed the lack of
confidence the Union States harbored with laws designed to get around the new
restrictions placed upon them.
After the American Civil War, the three
amendments proposed and ratified to protect the emancipated slaves were
specifically designed for the purpose of ensuring the newly freed slaves were
treated equally in the eyes of the law.
Statism, however, seized upon the ideas planted by Congressman John
Bingham, and through the courts worked to weave an intricate tapestry that
would change the culture of the United States from a union of voluntary
members, to a nation of states joined in an unbreakable union. The country no longer resembled the union of
sovereign states it had once been, and instead became a nation held together by
the statist consequences of the ravages of war.
The federal government telling States what they
can and can’t do regarding our rights opens a Pandora’s Box the framers of the
Constitution never intended to be breached.
By allowing the federal government to dictate to the States what they
can and can’t do regarding rights, even with the best of intentions, the
precedent is established allowing federal control. A federal government that can force a State
to behave in an acceptable manner can later dictate to a State to follow a
federal mandate designed to reduce your access to your rights.
As President Gerald Ford once wisely said, “A government big enough to give you everything you want is a government big enough to take from you everything you have.”
A significant segment of
the Founding Fathers believed the Bill of Rights to be unnecessary. The first seven articles of the U.S.
Constitution were written in such a way that the concerns of the Anti-Federalists
had been addressed, but they still feared that the federal government would
compromise the natural rights of the citizens if a Bill of Rights was not
included in the Constitution.
The Constitution was
written in a manner that allowed the new federal government only the
authorities granted to it by the Law of the Land. Regarding arms, for example, the
possession of guns was never an issue granted to the federal government in the
first seven articles of the U.S. Constitution, therefore the federal government
had no authority to restrict guns in any way, shape, or form. The Anti-Federalists, however, did not
believe the federal government would abide by the limitation of authorities
placed on the United States Government, and demanded that a Bill of Rights be
written. Failure to provide a Bill of
Rights, indicated the Anti-Federalists, would result in a failure of those
States dominated by Anti-Federalists to ratify the new Constitution.
The Framers of the
Constitution, understanding that without the critical approval of the
Anti-Federalists, the new Constitution would never be ratified, agreed to
include a Bill of Rights. James Madison
was asked to gather the amendments to be proposed and potentially ratified by
the States, and use them to write a Bill of Rights.
Originally, there were a
large number of amendments proposed, but the final proposal that went to the
States for ratification was narrowed down to twelve amendments. Only ten were ratified. Of the remaining two, one regarding
apportionment remains unratified, and the other became the Twenty-Seventh
Amendment in 1992.
The debates over the
adoption of the Constitution found the Anti-Federalists fearful that as
drafted, the Constitution created a central government that may have the
opportunity to become a tyranny. These
fears were based on the memory of the British violation of basic civil rights
before and during the American Revolution.
With past British tyranny as a frame of reference, the Anti-Federalists
demanded that a "bill of rights" be written that would clarify
without question the immunities of individual citizens. Though the amendments of the Bill of Rights
were not proposed until 1789, several state conventions during their
ratification conventions ratified the Constitution with the understanding that
the amendments would be offered.
One of the fears regarding
the proposal of the Bill of Rights was that by trying to protect specific
rights, it might imply that any unmentioned rights would not be protected. It was believed by many that as a result, the
Bill of Rights was actually unnecessary, for in the British system of common law natural rights were not
defined, nor quantified. Adding a Bill
of Rights to the Constitution may actually limit the rights of the people to
those listed in the Constitution. As a
result of this argument, included in the Bill of Rights is the Ninth Amendment,
which indicates that rights not enumerated
would also be protected.
Another argument against
the Bill of Rights is that the ten amendments muddy the waters of the
Constitution, because the first seven articles were designed to grant
authorities to the federal government, and if an authority is not granted, the
federal government does not have that power.
The Bill of Rights tells the federal government what it cannot do. This enables those who oppose the
Constitution to claim that the Constitution does not only grant express powers. By focusing on the Bill of Rights, the
opposition responds to constitutional challenges with the question, “Where in
the Constitution does it say the federal government can’t do that?” Considering the Bill of Rights was not even
necessary, this provides unnecessary ammunition to those that oppose the
Constitution.
Terms:
Anti-Federalists - Opposed to formation of a federal government,
particularly by adoption of the Constitution of the United States.
Arms - Weapons, firearms; a gun that may be used for
protection of property or as part of a militia.
Bill
of Rights - The first ten amendments
of the U.S. Constitution; a formal summary of those rights and liberties
considered essential to a people or group of people.
Common
Law - The part of English law
that is derived from custom and judicial precedent rather than statutes, able
to be changed by the whims of the governed, or their representatives.
Enumerated
- Counted or told, number
by number; reckoned or mentioned by distinct particulars.
Questions for
Discussion:
- Why does the Constitution offer the
opportunity for both oaths, and affirmations?
2. Why
did some of the Founding Fathers consider the Bill of Rights unnecessary?
3. What
did the Anti-Federalists think of the creation of the federal government? Why?
4. Why were the Founding Fathers willing to add
the Bill of Rights even though they believed the
amendments
to be unnecessary?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution -
Learning from the Original Texts Using Classical Learning Methods of the
Founders; San Marcos: The Center
for Teaching the Constitution (2010).
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five – Amendments 1-12; Indianapolis: Liberty Fund (1987)
The Charters of
Freedom: The Bill of Rights, National Archives and
Records Administration: http://archives.gov/exhibits/charters/bill_of_rights.html
Incorporation of the Bill of Rights
The Bill of Rights was
originally intended to be applied only to the federal government. Even the most ardent opponent to the originalist view of the Constitution
concedes that it is commonly understood that originally the Bill of Rights was
not intended to apply to the States whatsoever.
The text of the U.S. Constitution does not necessarily clearly exhibit
that the Bill of Rights was only intended to apply to the federal government,
but a deep study of the text of the first ten amendments, and the various
writings of the Founding Fathers on the topic, reveals without a doubt that the
Bill of Rights was indeed originally intended to only apply to the federal
government.
Though even the most ardent
opponent of the United States Constitution will admit that the Bill of Rights
was originally intended to only apply to the federal government, the rule of
inapplicability to the States was abandoned by statists after 1868, when it
became argued that the 14th Amendment changed this rule, and served to extend
most of the Bill of Rights to the States.
The section of the 14th
Amendment that has been interpreted to extend the Bill of Rights to the States
comes from the second sentence of Section 1 of the 14th Amendment, which reads:
“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 any 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.”
Through a series of court
rulings, the Supreme Court has changed the Constitution by applying parts of
the Bill of Rights to the States. The
process over the time period since the ratification of the 14th Amendment which
works to apply the Bill of Rights to the States through court rulings and
written opinions is called “The Incorporation of the Bill of Rights.”
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. In other words, the Bill of Rights was not
written for the people, but for the federal government as a means of telling
the federal government what it cannot do in regards to our unalienable rights.
Why not apply these
amendments to the States as well?
The States already had a
Bill of Rights in their own State Constitutions (and those that did not have a
constitution yet, did include a Bill of Rights later). The Founding Fathers were confident that the
people of the States could control their own State officials, and would be
involved in their local governments. The
people did not fear their local governments acting in a tyrannical manner
similar to the potential of a centralized government system. Their fears were of the new and distant
central government.
Originally, parts of the
first 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, and therefore were not a
part of the proposed amendments to the States.
The Bill of Rights was
understood, at its ratification, to be a bar on the actions of the federal
government. Prior to the incorporation
of the Bill of Rights to the States by the courts as based on their
interpretation of the 14th Amendment, the Bill of Rights did not apply to the
States, and was never intended to be fully applied to the States.
The argument used, despite
original intent, that the Bill of Rights must also apply 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 property which in turn are considered to be God-given and
unalienable, then State governments do not have the authority to infringe on
those rights any 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.
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.
This returns us to the
argument that the 14th Amendment is the source and authority of the
incorporation of the Bill of Rights to the States. The Supreme Court's first ruling regarding
the scope of the 14th 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 14th 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 14th Amendment
as an authority for incorporation.
During the early twentieth century a number of court cases, using the
arguments referencing the 14th 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 was 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.
Congressman John A. Bingham
of Ohio was the primary author of the first section of the 14th amendment, and
it was his personal intention the Bill of Rights be applied to the States as
well. His argument was that it was
necessary in order to secure the civil rights of the newly appointed
slaves. However, most of the
representatives during the five months of debate on the floor of Congress
argued against incorporating the Bill of Rights to the States, and so when the
amendment was agreed upon for proposal, the majority of those involved intended
for the 14th Amendment to not influence how the Bill of Rights was
applied. In the beginning, the courts
ruled that the Amendment did not extend the Bill of Rights to the States. It was after the realization that Black Codes were emerging in the South
that the courts decided for the purpose of protecting the civil rights of the
emancipated slaves, they would begin to apply parts of the Bill of Rights to
the States.
Terms:
Black
Codes - Laws put in place in the
United States after the Civil War with the effect of limiting the basic human
rights and civil liberties of blacks.
Incorporation
of the Bill of Rights - The process through
court rulings based on the interpretation of the 14th Amendment to apply the
Bill of Rights to the States.
Judicial
Activism - When judges violate the
Separation of Powers through their rulings; when a judge rules legislatively by
modifying or striking down a law using the unconstitutional authority of
judicial review.
Original
Intent - Original meaning of the
United States Constitution as intended by the framers during the Federal
Convention of 1787, and the subsequent State Ratification Conventions.
Originalist
view of the Constitution
- View that the Constitution as written should be interpreted in a manner
consistent with what was meant by those who drafted and ratified it.
Questions for
Discussion:
1. Why is the originalist view of the
Constitution so important?
2. How have Statists changed the Constitution
through the courts over the last two hundred years?
3. What is the only legal way to change the
Constitution?
4. Why is the Bill of Rights not a guarantee of
individual freedoms?
5. From where do our rights come from?
6. How did the Black Codes play a part in the
incorporation of the Bill of Rights?
Resources:
14th Amendment to the U.S. Constitution: Civil
Rights (1868), Our
Documents dot gov: http://www.ourdocuments.gov/doc.php?flash=true&doc=43
Intent of the Fourteenth Amendment was to
Protect All Rights (argument
supporting incorporation of the Bill of Rights to the States),
Constitution dot org (2000): http://www.constitution.org/col/intent_14th.htm
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution -
Learning from the Original Texts Using Classical Learning Methods of the
Founders; San Marcos: The Center
for Teaching the Constitution (2010).
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five – Amendments 1-12; Indianapolis: Liberty Fund (1987)
Richard L. Aynes, On Misreading John Bingham and
the Fourteenth
Amendment (1993): http://www.constitution.org/lrev/aynes_14th.htm
The Fourteenth Amendment and Incorporation, The
Tenth Amendment
Center (2010): http://newyork.tenthamendmentcenter.com/2010/05/the-14th-amendment-and-incorporation/
To Whom Does The Bill Of Rights Apply?, Lew
Rockwell dot com
(2005): http://www.lewrockwell.com/browne/browne27.html
What is the Bill of Rights?, About dot com Civil
Liberties (argument
supporting incorporation of Bill of Rights to the States: http://civilliberty.about.com/od/historyprofiles/f/what_is_bill.htm
Copyright 2015 Douglas
V. Gibbs
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