The Volokh Conspiracy

Well, after reading Tim's fine summary, it seems more reasonable, rather than celebrating the birthday of the Bill of Rights, to try and discern from historians which is the best day on which to commemorate the anniversary of its passing...

If the BoR were up for vote today, it would overwhelmingly be rejected as pro-criminal, anti-children hogwash. The only thing worth celebrating are the last remnants of the BoR which have not yet been revoked or nullified by "exception" by the Supreme Court.

The only thing that truly remains in force is no quartering of troops in homes. Woohoo. And that's only because the government's never had a reason to try it. Surely the SCOTUS would create an "exigent circumstances" exception to the 3rd Amendment to allow quartering of troops... don't doubt it for a second.

It's tough to understand the logic that these rights were guaranteed to citizens by a Constitution, approved of by all the states in convention and yet the individual states did not have to observe these rights when writing legislation until the 14th Amendment came along. Was it really the understanding that States were allowed to modify rights or was it just a flaw that developed as history marched on.

How would Congress vote to allow statehood if these same rights were not included in each state's constitution...verbataim.?

knew the BoR was ratified in 1791, but I didn't know it was on December 15.

So happy 206th anniversary, Bill of Rights!

You need to use a calculator.

I think it was always intended for the bill of rights to apply to the states, and that it only refers to "Congress" is merely inartful drafting. Any other interpretation renders the BoR meaningless. The whole "incorporation" debate, as to some amendments and parts of amendments being incorporated to the states through the 14th and some not being incorporated through the 14th (like the right to a grand jury indictment) has always been, in my humble opinion, the most asinine subject of ConLaw.

Well, you can argue that the Fourteenth was never designed to incorporate the Bill of Rights against the states, and the whole system makes a bit more sense.

States developed their own Bills of Rights before and after the ratification, which indicates that they never saw the Constitution as binding upon them. Considering that many states had established religions, it seems as if the citizens would never have passed the First Amendment.

Furthermore, the Constitution does limit the ability of states to act (and not just by negative implication): consider Art. I, Sec. 10 (prohibitions on, inter alia, entering treaties, coining money, levying import taxes, keep troops, engage in war). (Obviously, when the Constitution discusses limitations on Congress or the rest of the federal government, it does so in general language - i.e. "No Bill of Attainder or ex post facto Law shall be passed," Art I Sec. 9, and specific language when dealing with the states, i.e. "No State shall... pass any Bill of Attainter, ex post facto Law...." Ergo, the reasons for construing the Bill of Rights as applying only on the states.)

The Bill of Rights does make sense when binding upon a federal goverment and not the states; IMHO, it makes more sense. As written, there is no reason why there should be any ban on speech to prevent imminent danger; however, states, which protect the health, safety, and welfare of their citizens, could so regulate.

If you don't happen to like your particular state, you can petition to change the laws or to move. It's much harder to leave one's country.

Two points about the Courts. VII provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law." It is logically senseless for that to be binding upon the states when the states explictly had their own court systems. ("Court of the United States," unless I am wildly mistaken, = Art. III court. If I'm wrong, someone please correct me before I take my federal jx final on Monday.) Finally, if the Bill of Rights were binding on the states, how would that be litigated in a post-XI Amendment world?

The Spending Clause nonsense came along long after the ratification of the Bill of Rights. IIRC, it really came into effect post-XVI and XVII Amendments.

I agree with glangston and BruceM. If the notion that the BofR was intended to protect certain individual rights against majoritarian rule is correct, then it is hard to see why it wouldn't apply to the states from the beginning.

This is even more the case when we consider that it was much harder to move from one state to another in the 18th century than it is today.

It's not logically senseless - such a position would be mistaken, but hardly senseless. Fortunately, that mistake has not been made. "Court of the United States" does indeed refer to Article III federal courts, and the Seventh Amendment (jury trials in civil cases) has been held not to apply to state courts. Many states do, of course, have similar trial by jury guarantees in their state constitutions.

Um, we're talking past each other, at best.

Bruce said: the Bill of Rights should have originally applied to the states as well.

Me: That doesn't make sense; look at the language (inter alia, the Seventh Amendment).

You: The Seventh Amendment hasn't been incorporated.

I really think we are talking past each other. There's no principled reason for the Bill of Rights to be binding upon the states as of 1791 (which Bruce suggested), but have that one lone exception (jury trials) which are not binding on the states. (Incorporation has not proceeded cleanly; it started, IIRC, in 1925, and various provisions have been incorporated since then. The Second Amendment has not been incorporated, IIRC, because the issue has not come before the Supreme Court since the 1870s. Incorporation via the XIV happens as the litigation comes before the Court, not on any principled timeline.)

Here's the two scenarios:
1) the Bill of Rights was not designed, when ratified in 1791, to be binding against the states. Simple, universal, principled, and comports with the internal language of the Constitution.
2) The Bill of Rights has been binding upon the states (or was intended to be binding upon the states) in 1791. One of the problems with this interpretation is the language in Art. VII, which renders that one clause not binding upon the states. Linguistically, it is one of the reasons why such an interpretation does not make sense.

1. Should you assume inartful drafting instead of the original meaning of the words? That theory renders the entire document virtually meaningless. Shouldn't we assume that people meant what they said?

2. Check out the 11th Amendment. The "Judicial power of the United States" clearly means the federal courts, as those words are echoed in Art. III, Sec. 1 (first words, actually). Moving onwards: Art. III tells us that this "Judicial power" shall be invested in one Supreme Court and any lower courts that Congress may design (this is the Madisonian compromise; the question was whether to have one Supreme Court that would hear federal cases, or whether there should also be inferiour tribunals). These are the "Courts of the United States," as this is where judicial power of the United States has been invested. Ergo, the Seventh Amendment only applies against the federal government.

3. The language of Art. I, Sec. 9 (clearly meant only as a prohibition against the federal gov't; contrast Art. I, Sec. 10, which binds only the states), Amendments II-VIII, and miscelleneous clauses in the Constitution all use general language to indicate when the federal government will be bound. When a state or a specific branch is implicated, such is named explicitly. You have to look at the document as a whole and understand its structure.

4. The purpose of the Constitution is not to protect your nether regions. Neither is it to exalt every right that you may desire or have; it is to set up a two-part system of govenrment (state and federal);

5. The Constitution uses "the United States" as something functionally different from the sum of all of the states and commonwealths; the federal government is "the United States," and the state governments are "the States." See, for example, Art. VI: "...and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...." We know from Art. I, Sec. 10 that states can't make treaties. How does it make sense, then, for "United States" to mean the group of the several states?

The construction you are giving to the Constitution requires that "United States" equate to both the federal government and the total of the states, while "States" equates to the latter, and nothing equates to the former. Well, I guess if you take that perspective, it IS sloppy drafting. ;) Thing is, if you look at the entire document, you see that the Framers were their own lexicographers; they used words like "the United States" to refer only to the federal government, and used language without a subject for reference to the rights and powers thereby.

Again, I don't buy "sloppy drafting." This isn't a Congressional statute or a city ordinance about zoning*; it was a document drafted, re-drafted, edited, and rewritten by people who expected that it would have to endure the highest scrutiny.


*Even if it were, the rules of construction still apply; it's much easier - and more principled - to determine what something does (or did) mean that what you think the person writing it meant for it to mean.

Anyone else want to help out?

1) the Bill of Rights was not designed, when ratified in 1791, to be binding against the states. Simple, universal, principled, and comports with the internal language of the Constitution.

And also correct.

2) The Bill of Rights has been binding upon the states (or was intended to be binding upon the states) in 1791. One of the problems with this interpretation is the language in Art. VII, which renders that one clause not binding upon the states. Linguistically, it is one of the reasons why such an interpretation does not make sense.

I don't see why this should be a problem. Even if one reads the 7th Amendment that way, they could have just intended everything except the 7th to apply to the states. If anything the 1st Amendment is a much bigger issue, since it explicitly applies to Congress. Anyway, I think it's all moot since the Bill of Rights in 1791 was not intended to apply to the states. The 14th Amendment did that, more or less.

I suspect that if the BOR was meant to apply to the states, someone would have mentioned it at the time. IIRC, nobody told Massachusetts that having an established church was, post 1791, a no-no.

As for the inconsistency of the states placing restrictions on the federal government that they didn't place on themselves, well, yes.

Interestingly enough, the sedition laws were objected to under a lack of power issue, specifically no article 1 power for federal government to regulate press. The first amendment was not used. Many of the objectors of the federal sedition acts supported sedition acts at the state level, and encouraged their use. So, just because we with our current world view cannot fathom why the government is arranged the way it is, that was the intent. Also, those who opposed the BoR appeared to be correct. The affirmative protection of rights was used as justification of the federal government getting involved in every matter that isn't mentioned, instead of staying within its enumerated bounds.

My Heritage Foundation colleague has some thoughts and historical background on the purpose of the Bill of Rights and the meaning of the holiday here.

I thought the whole point of the Establishment Clause was to allow states to have established religions without interference from the Federal government. I know that's considered a crackpot position now, but looking at the context and the actual wording, it's blatantly obvious that that's what it meant.
You likely think this because this is Justice Thomas’s position. Sadly for Justice Thomas, and for you, it has no historical support.

No one was making this argument regarding the Establishment Clause at the time of the founding. Federal power was, of course, understood to be quite limited at the time of the founding and it was hard to find a federal power that would allow the federal government to infringe on a state’s establishment. Indeed, think back to the anti-federalist writings, which were a series of “the sky will fall if you pass the constitution because these awful things will happen.” Even they never suggested that the federal government would start banning state establishments. In fact, the principle benefactors of the argument that the federal Establishment Clause was intended to protect state establishments was Connecticut and Massachusetts, who both had state establishments. But both refused to ratify the First Amendment; indeed, Massachusetts did not ratify it until 1939.

The New England establishments were controversial in those states, but nobody else cared. And even the elite in establishment states did not take the dissenters seriously; they said it was a very mild establishment compared to historical establishments.

Justice Thomas has never responded to any of this, despite the fact that parties have made these arguments to combat his ahistroical view of the Establishment Clause. Surprise, surprise.

So the idea was that it was OK for an individual state to outlaw Roman Catholicism, say, but not for the federal government to do so?

Yes.

Prof Adler is completely correct in his explanation of why the Bill of Rights was originally intended to apply only to the federal government (not state governments) and that the 14th Amendment applied some of the Bill of Rights to state governments as well (exactly how much of the Bill of Rights is the subject of endless debate).

CEB, it was meant to restrain the federal government from passing any federal law respecting an establishment of religion. Note that the clause not only forbids establishing a religion, but laws respecting (i.e., having a tendency to) establish a federal religion.

It had nothing to do with the states, which could clearly do whatever they wanted with respect to religion.

Note also that "an establishment of religion" is a term of art for a state-sponsored church, which is a civil entity and not a set of beliefs. There's nothing there to prevent the Congress from declaring America to be a Christian (or Jewish, or Moslem) country since these are religions and not churches.

Of course, the Equal Protection Clause trumps this.

A few quick points:

The Bill of Rights is an amendment to the Constitution. It should not be read in a vacuum.

The affirmative protection of rights was used as justification of the federal government getting involved in every matter that isn't mentioned, instead of staying within its enumerated bounds.

Bingo. That is also the meaning of the IX and X Amendments - simply because our rights are enumerated does not mean that they should be restricted.

For fun: here is the Massachusetts Bill of Rights, as adopted eleven years prior to the Bill of Rights.

"Congress may not establish a state religion," it says "Congress shall make no law respecting an establishment of religion . . ."

The latter further restricts Congress from prohibiting states from establishing religions.

Not to nit-pick, but you might want to re-write your first sentence to include the fact that there can be state religions and an American religion (i.e. those established by individual states, and one established by the nation through Congress and the Executive).

The only reason I nit-pick about that is because the Establishment Clause, as written, prohibits Congress from establishing a national religion, establishing religions in different states, and prohibiting states from establishing religions.

It is my understanding, regarding a free press, that the line was inserted to prevent licensing laws that were in place in England in the seventeenth century, and that states were welcome to have laws regarding libel, invasion of privacy, and defamation.

In that light, the fact that the Bill of Rights only restricts the central government seems rather sensible. States may establish their own religions, allow suits in defamation, devise their own court systems (actually, those existed that the time of ratification), and devise their own punishments. The Constitution is full of checks upon the federal government - internal checks through the separation of powers, checks through the limitation of powers, and, finally, checks through the assignation of rights to the states or to the people.

I'm aware of that. I'm just pointing out that your rewrite of a hypothetical Establishment Clause implicates that very issue.

Jonathan,

Thanks forthe background. I guess my point deals with the question you raise here:

Whether this approach was sufficient to protect individual liberty is another matter, however

It seems to me blatantly obvious that having the BofR apply only to the federal government would be insufficient to protect individual rights, since this implies that the states could override the guarantees.

In the case of the religion clause of the First Amendment, for example, it seems that all they do, under this interpretation, is protect the rights of the states to establish whatever religious rules they liked, without interference. So a state could ban Roman Cathilicism, for example, or make its practice mandatory, without federal intervention. This is no gurantee of individual rights at all - the more so when we consider how many restrictions there were on the right to vote at the time.

How does this fit with the prohibition against religious tests for office?