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Thursday, February 18, 2021

Carlsbad Constitution Class: Federal Supremacy, Intro to the Bill of Rights


Carlsbad
Health From Within Family Wellness Center
1818 Marron Rd., #103
Carlsbad, CA 92008
6:00 pm
Thursdays

For Zoom, contact Julie@1776foreverfree.com

Constitution Class Handout
Instructor: Douglas V. Gibbs

 
 
 
Lesson 11
 
Debt and Supremacy
 
           Prior Debt
 
Article VI begins with “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
 
The first clause of Article VI legally transfers all debts and engagements under the Articles of Confederation into the new government. This is not only the debts and engagements by the United States Government under the Articles of Confederation, but also includes all debts of each of the several States. After ratification of the Constitution, each and every State would be debt free, and all debt would be held by the federal government. This condition, according to the Constitution, would be the last time the States would legally be in debt. In Article I, Section 10, the Constitution forbids the States from issuing bills of credit.
 
Alexander Hamilton, the first Treasury Secretary, suggested that the United States should remain in perpetual debt. Maintaining a perpetual debt, he explained, would be a mechanism that could assist in holding together the union, since States would be unlikely to secede when they are responsible for a part of the national debt.
 
Thomas Jefferson disagreed with Hamilton. He recognized the necessity to maintain the ability to borrow, and the need for credit, but found a national debt to be a potentially dangerous proposition.
 
"Though much an enemy to the system of borrowing, yet I feel strongly the necessity of preserving the power to borrow. Without this, we might be overwhelmed by another nation, merely by the force of its credit." -- Thomas Jefferson to the Commissioners of the Treasury, 1788.
 
"I am anxious about everything which may affect our credit. My wish would be, to possess it in the highest degree, but to use it little. Were we without credit, we might be crushed by a nation of much inferior resources, but possessing higher credit." -- Thomas Jefferson to George Washington, 1788.
 
"Though I am an enemy to the using our credit but under absolute necessity, yet the possessing a good credit I consider as indispensable in the present system of carrying on war. The existence of a nation having no credit is always precarious." -- Thomas Jefferson to James Madison, 1788.
 
"I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government; I mean an additional article taking from the Federal Government the power of borrowing. I now deny their power of making paper money or anything else a legal tender. I know that to pay all proper expenses within the year would, in case of war, be hard on us. But not so hard as ten wars instead of one. For wars could be reduced in that proportion; besides that the State governments would be free to lend their credit in borrowing quotas." -- Thomas Jefferson to John Taylor, 1798.
 
"I sincerely believe... that the principle of spending money to be paid by posterity under the name of funding is but swindling futurity on a large scale." -- Thomas Jefferson to John Taylor, 1816.
 
If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks…will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered…. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.” -- Thomas Jefferson in the debate over the Re-charter of the Bank Bill (1809)
 
I believe that banking institutions are more dangerous to our liberties than standing armies.” -- Thomas Jefferson
 
… The modern theory of the perpetuation of debt has drenched the earth with blood, and crushed its inhabitants under burdens ever accumulating.” -- Thomas Jefferson
 
 
 
           The Supremacy Clause
 
Article VI, Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
 
Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution, the Supremacy Clause has been used in line with the concept of Federal Supremacy. Federal Supremacy is a concept our first Chief Justice, John Jay, believed in. During his stint on the Supreme Court Jay worked feverously to establish broader powers for the courts, and to transform the federal government into a national government. He quit the Supreme Court after failing, pursuing an opportunity to be governor of New York.
 
Chief Justice John Marshall spent his 36 years on the Supreme Court attempting to establish, and expand federal supremacy, and largely succeeded. Marshall is embraced by statists as the one to develop federal supremacy in his opinion of the Mcculloch v. Maryland case in 1819 where the Court invalidated a Maryland law that taxed all banks in the State, including a branch of Alexander Hamilton’s creation, the national Bank of the United States. Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the national bank, the Necessary and Proper Clause provided the basis for Congress's action. Marshall concluded that "the government of the Union, though limited in its power, is supreme within its sphere of action."
 
During the 1930s, under Franklin Delano Roosevelt, the Court invoked the Supremacy Clause to give the federal government broader national power. The federal government cannot involuntarily be subjected to the laws of any state, they proclaimed, and is therefore supreme in all laws and actions.
 
The legally, and commonly, accepted definition, as a result of the courts and the persistence of, regarding the Supremacy Clause, is that all federal laws supersede all State laws.
 
The commonly understood definition of the Supremacy Clause is in error. To understand the true meaning of this clause, one must pay close attention to the language used.
 
If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government’s law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.
 
An example of the federal government acting upon the assumption that all federal law is supreme over State law is when the medical marijuana laws emerged in California in 1996 after the passage of Proposition 215. Though I do not necessarily agree with the legalization of the casual recreational use of marijuana, and believe “weed” should be heavily regulated like any other pharmaceutical drug if being used for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.
 
California’s law legalizing marijuana for medicinal purposes was contrary to all federal law that identified marijuana as being illegal in all applications. Using the commonly accepted authority of the federal government based on their definition of the Supremacy Clause, federal agents began raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government. From a constitutional point of view, then, the raids on medical Marijuana labs in California were unconstitutional actions by the federal government.
 
The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.
 
Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that State laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.
 
In the case of Arizona’s immigration law, S.B. 1070 in 2010, the argument by the federal government that Arizona’s law is contrary to federal law was an erroneous argument. Assuming, for just a moment, that the federal government has complete authority over immigration (which is not true since immigration is one of those issues in which the federal government and the States have concurrent powers), Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law was similar to federal immigration law. The only difference was that Arizona’s law disallowed racial profiling.
 
The federal government’s argument when the United States Department of Justice filed a lawsuit against the state of Arizona in the U.S. District Court for the District of Arizona on July 6, 2010, was that the law must be declared invalid because it interfered with the immigration regulations exclusively vested in the federal government. Therefore, a State cannot enforce immigrations laws if the federal government decides not to, nor can a State pass law regarding an issue that the federal government has sole authority over. In this way, Arizona was considered to be acting “contrary” to the federal government.
 
Article I, Section 9, Clause 1, and Article I, Section 10 in the final clause, provides that States hold concurrent authorities regarding immigration, and securing the border. Therefore, the federal government’s argument that they held sole authority over the issue was in error.
 
Eric Holder, when he filed the lawsuit in the U.S. District Court also acted unconstitutionally because in Article III, Section 2, the Constitution states that all cases “in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Since the case was the United States v. Arizona, the case, constitutionally, could only be filed with the United States Supreme Court.
 
The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
 
The clause establishes three things as being potentially the supreme law of the land. First, “This Constitution.” Second, “Laws of the United States which shall be made in pursuance thereof.” And Third, all Treaties made, or which shall be made.”
 
“This Constitution” is the supreme law of the land. Understanding that first part of the clause is easy.
 
The second one has a condition attached to it. “Laws of the United States which shall be made in pursuance thereof.”
 
In pursuance thereof? In pursuance of what?
 
Of “This Constitution.”
 
Therefore, if a law is not made “in pursuance” of “This Constitution,” then the law is an illegal law, and cannot possibly be the supreme law of the land. Unconstitutional laws are not the supreme law of the land, which reveals that all federal laws are not the supreme law of the land. Illegal law made outside the authorities granted by the Constitution of the United States cannot legally be the supreme law of the land.
 
After “pursuance thereof” in the clause, a semicolon is used. The semicolon separates “Treaties” from the “Laws of the United States.” The separation by the semicolon means that “in pursuance thereof” applies to “Laws of the United States,” but not to “Treaties.” This means that treaties not in line with the principles of the Constitution can be accepted as the supreme law of the land.
 
The concern over treaties was not great, because the Senate was the voice of the States, and the States are the final arbiters of the Constitution. If the States are willing to ratify what would be considered an unconstitutional treaty, they must be given the chance. Therefore, “in pursuance thereof” does not apply to treaties.
 
The importance of this part of the Supremacy Clause revealed itself during Jefferson’s Louisiana Purchase in 1803. As discussed in Article I, Section 8, Clause 17, the federal government does not have the authority to buy or own land unless it is purchased from a State, by the consent of the State legislature, for the purpose of needful buildings. The details of the Louisiana Purchase did not fit Article I, Section 8, Clause 17’s requirement. To get around that, President Thomas Jefferson negotiated the Louisiana Purchase with France through treaties. Since treaties were ratified by the States through the Senate, it kept the States involved in the process, and made the purchase the law of the land even though technically it was not constitutional.
 
           Oath or Affirmation to Support This Constitution
 
Article VI, Clause 3 indicates that all elected officials are bound to support the Constitution by oath or affirmation. An oath is to God, and an affirmation is not a sworn oath to God. This was offered because the Founding Fathers recognized that not everyone believed in God, and that there were some religions that believed swearing to God to be a sin.
 
The final clause of Article VI also states that there shall be no religious test to serve. This was not the case inside the States. This was a provision only required of the federal government. At the State level, established churches, and religious tests were the norm. The Danbury Baptists in Connecticut appealed to President Jefferson because they felt they were being mistreated by the Puritans. The Baptists felt they were being treated like second class citizens in a State dominated by the Puritan Church. Jefferson replied that the federal government could not help them. It was a State issue.
 
Alexis de Tocqueville observed when he visited the United Sates in the 1830s that religious freedom had truly come to The States. In America, the politicians prayed, and the pastors preached politics, yet neither controlled the other. He concluded America’s greatness was a result of the good in America, coining the term American Exceptionalism.
 
Terms:
Concurrent Powers – Government powers shared by the State and the federal government.
 
Exceptionalism - The condition of being exceptional or unique; the theory or belief that something, especially a nation, does not conform to a pattern or norm.
 
National Bank - In the United States, a bank chartered by the federal government authorized to issue notes that serve as currency; a bank owned and administered by the government, as in some European countries.
 
Oath - A solemn sworn declaration, or promise, to a deity (God), to fulfill a pledge.
 
Supremacy Clause - Clause in the Constitution that indicates that all federal laws, and treaties, passed under the authorities granted by the Constitution, are the Supreme Law of the Land
 
Questions for Discussion:
1. What was the common opinion by the Founding Fathers regarding a perpetual national debt?
 
2. What limitations on national debt did the Framers of the United States Constitution consider?
 
3. It is a common belief in today’s society that all federal laws are supreme to all State and municipal laws. Why is this belief wrong?
 
4. How does the Supremacy Clause enable Nullification?
 
5. Why does the Constitution offer the opportunity for both oaths, and affirmations?
 
Resources:
John Taylor, New Views of the Constitution of the United States; Washington City: By Way and Gideon
(1823)
 
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).
 
Madison’s Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Four – Article I I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
 
Sam Cornell, The Other Founders: Anti-Federalism and the
Dissenting Tradition in America, 1788-1828; Chapel Hill: University of North Carolina Press (1999)
 
Copyright: Douglas V. Gibbs, 2015
 
 
Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
 
 
 
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:
  1. 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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