Guest Essayist: Gary Porter

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How the Bill of Rights Was Aimed at the Federal Government Because States Had Their Own Bills of Rights

James Madison was suspicious of a Declaration of Rights at the national level. In a letter to his friend Thomas Jefferson, then serving as Minister to France, Madison confessed that his “own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.”[1] He was particularly concerned “that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[2] But Madison had seen, first-hand, the obstinacy of the states under the Articles of Confederation towards the rights of their citizens.  In his “Vices of the Political System of the United States,” Madison decried the “Injustice of the laws of States.” While the “multiplicity” and “mutability” of state laws showed a “want of wisdom,” their “injustice” was “still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”[3]

Madison told Jefferson that in their home state he had “seen the bill of rights violated in every instance where it [was] opposed to a popular current.” His precious “rights of conscience” were particularly vulnerable.  Madison was livid over the jailing of Baptist preachers in the neighboring Culpeper County, calling it “that diabolical Hell conceived principle of persecution” in a letter to his College of New Jersey classmate William Bradford.

In 1776, Madison had the opportunity to strike a blow for liberty of conscience by successfully arguing, as Virginia’s Declaration of Rights was being drafted, that the principle of “toleration” towards other Christian denominations, even if it was fullest toleration, was simply not enough.  Citizens would not enjoy complete liberty of conscience until “all men are equally entitled to the free exercise of religion.”

It comes as no surprise then to see Madison try once again to protect liberty of conscience in 1789 when drafting his proposed amendments to the new Constitution. One proposed article read: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”  In the ensuing floor debate it was argued that this amendment was improper; the Constitution gave the federal government no authority to alter the state constitutions, and such an amendment would certainly amount to such an alteration, at least in the state constitutions where a right of conscience was not already secured.  Madison, however, viewed this as the most important amendment in the whole list, his reason being, “If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against State Governments.” Madison was eventually outvoted and the “infringement” on the states was “left on the cutting room floor.”

The Constitution already contained some specific words concerning state powers; Article 1 Section 10 enumerated several tightly targeted prohibitions, and the 10th Amendment made clear that any power not specifically granted to Congress was reserved to the states and/or the people.

Congressmen in the summer of 1789 were well aware that the constitution of nearly every state predated the new U.S. Constitution and that they had been working well.  Almost all of them contained either Declarations of Rights or specific protections in the body of the constitution; some of these protections were more elaborate even than those which ended up in the U.S. Bill of Rights.[4]

That’s the way things would stand for the next 136 years; but I’m getting ahead of myself.

In the early 1830s, the city of Baltimore, Maryland, began a public works project that required the modification of several streams that emptied into Baltimore Harbor. Construction resulted in large amounts of sediment entering the streams, which flowed into the harbor near a wharf owned and operated by one John Barron.  The sediment eventually reached the point where it became nearly impossible for ships to approach Mr. Barron’s wharf and his business dropped precipitously. Barron sued the City of Baltimore for his financial loss, arguing that the city’s action “took” his property without the due process promised him by the Fifth Amendment. He was awarded $4,500 in damages by the trial court, but a state appellate court reversed the decision.  Barron appealed to the Supreme Court, which ruled[5] that the Fifth Amendment’s guarantee of just compensation when private property is taken for public use is a restriction on the federal government alone. The opinion in Barron v. Baltimore by Chief Justice John Marshall held that the Constitution’s first ten amendments[6]contain no expression indicating an intention to apply them to the State governments.”

This made perfect sense.  The first five words of what became known as the Bill of Rights: “Congress shall make no law…” make clear the target of the amendments – Congress (and by implication, the rest of the federal government), not the states.

On February 26, 1866, in debate over what became the 14th Amendment, the amendment’s principal author, Rep. John Bingham, was asked whether he intended the amendment to apply, as some perceived, “only to the eleven states lately in rebellion.”  Bingham replied: “It is to apply to other States also that have in their constitutions and laws to-day provisions in direct violation of every principle of our Constitution.”[7]

The following day, Rep. Bingham rose to elaborate upon the preceding day’s debate.

“Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment…

“Mr. Speaker, I speak in behalf of this amendment in no party spirit, in no spirit of resentment toward any State or the people of any State, in no spirit of innovation, but for the sake of a violated Constitution and a wronged and wounded country whose heart is now smitten with a strange, great sorrow. I urge the amendment for the enforcement of these essential provisions of your Constitution, divine in their justice, sublime in their humanity, which declare that all men are equal in the rights of life and liberty before the majesty of American law.

“Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right: that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.”

Representative Robert Hale of New York rose to ask whether he might be allowed “to ask a single question pertinent to this subject?” Bingham accepted.

(Hale) “I desire … to ask [Mr. Bingham], as an able constitutional lawyer, which he has proved himself to be, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal…”

(Bingham) “It certainly does this: it confers upon Congress power to see to it that the protection given by the laws of the United States shall be equal in respect to life and liberty and property to all persons.”

(Hale) “Then will the gentleman point me to that clause or part of this resolution which contains the doctrine he here announces?”

(Bingham) “The words ‘equal protection’ contain it, and nothing else.”

It would take the Supreme Court 39 years to come around to Bingham’s thinking on the 14th Amendment.

Eight years after the 14th Amendment was ratified, in fact, in United States v. Cruikshank, the Court affirmed, once again, that the Bill of Rights did not apply to the states.  In Cruikshank, it meant that the First Amendment’s right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.”[8]

We skip forward to July 1919. Benjamin Gitlow, a member of the Socialist Party of America, who had served in the New York State Assembly, published a document called “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he also served as business manager.  The State of New York charged Gitlow with criminal anarchy under New York’s Criminal Anarchy Law of 1902.

At trial, Gitlow insisted that his “Manifesto” consisted of historical analysis and did not advocate anarchy. Nevertheless, he was convicted and sentenced to five to ten years in prison.  He appealed, and the case eventually reached the Supreme Court.

The question presented to the court was: “Does the First Amendment prevent a state from punishing political speech that directly advocates the government’s violent overthrow?” The Supreme Court said “No,” finding that “Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible use of language.”  They upheld Gitlow’s conviction with the explanation that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government, but the Court took the unprecedented step in announcing that, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.[9] (Emphasis added) This became what is now called the “Incorporation Doctrine.”

After Gitlow, the Court began the tedious process of clause by clause incorporation as specific cases allowed. Not every clause of the Bill of Rights was deemed worthy of incorporation; in Palko v. Connecticut, the Court ruled that only those rights that were “of the very essence of a scheme of ordered liberty” should be incorporated.[10]  We should note that the phrase “scheme of ordered liberty” appears nowhere in the Constitution. To mold a court-invented doctrine so that it aligns with a syrupy but entirely unconstitutional phrase would seem the height of judicial hubris.

Some notable exceptions to incorporation thus far include the entire Third Amendment (outside the jurisdiction of the Second Circuit Court of Appeals), indictment of a Grand Jury (Fifth Amendment) and the right to a jury selected from residents of the state and district where the crime occurred (Sixth Amendment).

A list of those clauses incorporated can be found on Wikipedia.[11] The most recent addition to the list is the “Excessive fines” clause of the Eighth Amendment in February 2019 (in Timbs v. Indiana)

The incorporation Doctrine is not without its critics,[12] this writer being one of them.  While it may be appropriate for the states to be held responsible for protecting the rights specified in the Bill of Rights, having the Supreme Court invent the doctrine of incorporation without input from We the People is blatantly unconstitutional.  The American people should have been allowed to conduct a national conversation over the idea, an appropriate Constitutional amendment should have been proposed and, if ratified, the feat would have been accomplished, constitutionally.  Instead, the court, never intended by the Framers to be representative of the people, took it upon itself to act.  This is certainly in line with the view of Chief Justice Charles Evan Hughes that “[w]e are under a Constitution, but the Constitution is what the judges say it is….”[13] The acquiescence of the American people since 1925 has been perceived as their acceptance.

Bryan Keith Morris, in The Incorporation Doctrine: A Legal and Historical Fallacy, takes a textualist instead of original intent position (as taken by the Court) in arguing that the Incorporation Doctrine should be discarded.  John P. Frank obliterates the originalist position in “The Original Understanding of “Equal Protection of the Laws.[14]  Both essays should be read before someone comes to a conclusion on the matter.

Today, Associate Justice Clarence Thomas and others maintain that the privileges and immunities clause of the Fourteenth Amendment and not the due process clause should provide the anchor for the Incorporation Doctrine. Thomas recently reiterated this view in his concurring opinion in Timbs v. Indiana.

No matter what your position of the rectitude of the Incorporation Doctrine today, it is indisputable that those who approved and ratified the Bill of Rights had no intention of infringing on the powers of the several states.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites. Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] James Madison to Thomas Jefferson, 17 Oct. 1788.

[2] Ibid.

[3] https://founders.archives.gov/documents/Madison/01-09-02-0187.

[4] See https://www.americanthinker.com/articles/2018/12/state_bills_of_rights_have_the_real_protections.html

[5] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[6] The Constitution had 12 amendments by then.

[7] https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/congress-debates-fourteenth-amendment-1866.

[8] https://caselaw.findlaw.com/us-supreme-court/92/542.html.

[9] https://supreme.justia.com/cases/federal/us/268/652/.

[10] https://en.wikipedia.org/wiki/Palko_v._Connecticut.

[11] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights.

[12] https://lonang.com/wp-content/download/TheIncorporationDoctrine.pdf.

[13] Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139.

[14] https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2738&context=law_lawreview.

2 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for the essay. Many ideas and concepts to consider.

    I can understand that the author of the 14th Amendment intended it to be binding upon the States. Not surprising considering 600,000 men died and another 600,000 were severely wounded over the right of States to decided or not to enslave other human beings. He wanted to an amendment binding upon all and deciding the issue once and for all.

    Notwithstanding the intent of this one amendment, does that mean all other amendments, including those specifically reserved only for the Federal government now to be incorporated. I agree with the author that such major shifts in the Constitution should be debated by the public with a specific amendment to extend application of some, none, or all of the Amendments to the States.

    I doubt there will ever be another amendment to Constitution unless it pertains to election rules, and I believe that an acceptable argument could be made before SCOTUS that would permit the judges to effect the change regardless of what is in the Constitution. I ask pardon for my skepticism. The Administrative State combined with an active judiciary has provided 100s, maybe 1000s of examples where they have modified the Constitution w/o amendment.

    I will gladly accept and hopefully will be proven wrong!

    PSD

    Reply

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