The
Founders Intended for the Bill of Rights to Apply to the States
by
Brian Puckett
Last
edited September 10, 2001
During
the last few years I have come across articles stating that the Founding Fathers
did not intend for the Bill of Rights to apply to the states, but only to the
Federal government. For example, the following statement appeared in a recent
issue of The New
American, a publication which usually seems trustworthy in its historical
content: “As a result, [the Founders] made the Bill of Rights applicable only
to the federal government, not to state or local governments.”
While
some early Supreme Court cases support this viewpoint, that proves nothing about
the intentions of those who wrote and ratified
the Constitution and the Bill of Rights. The Supreme Court is a political
institution, just as much as the executive and legislative branches of the
government are. The members of the Supreme Court, who are appointed and
confirmed by politicians, have their own political and sociological agendas. The
Supreme Court is not, and has never been, an objective, scholarly body of wise
people who make decisions based purely on the original meaning and scope of the
Constitution.
That
is not to say that Supreme Court decisions are always incorrect due to political
influences. Frequently the political currents of the day are such that the Court
(or at least a majority of the voting justices) renders an opinion that conforms
closely with the original intent of the Founders.
In
order to answer the question “Did the Founders intend for the Bill of Rights
to apply to the states?”, if we set aside any Supreme Court decisions relating
to that matter, we are left with the writings of the Founders and – most
important of all – the actual legal document they produced, the Constitution and its first ten Articles of Amendment. I
say most important of all because this final product was the result of
prolonged, intense debate, scrutiny, and modification by many extremely
intelligent, devoted, and interested men. They accepted this final product for
their new nation.
Article VI: Constitution is supreme
over state constitutions and laws
First,
there is no place in the rest of the
Constitution that says the Constitution – of which the Bill of Rights is an
inseparable part – applies only to
the federal government. On the contrary, there
is a place in the Constitution that says in no uncertain terms that the Constitution – of
which the Bill of Rights is an inseparable part – applies to federal,
state and local governments. It is Article VI, Section 2, which states, “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.”
Stated
in other words, “The Constitution, and all U.S. laws and treaties written to
put it into effect, will be the supreme laws of this nation, and the judges in
every state must obey these laws in spite of anything that any state
constitution or state law says.” Thus, the moment it was ratified in 1791, the
first ten amendments to the U.S. Constitution (which we call the Bill of Rights)
automatically superseded all state constitutions and laws.
To
drive this point home, note that Article VI, Section 2 says, “judges in every
state”. This includes all judges,
including state and local judges, not just
federal judges. Thus, from the very beginning, the Constitution and its
subsequent amendments (the Bill of Rights) clearly applied to the states via
their judiciary.
To
further drive this point home, note that Article VI, Section 2 decrees that
anything in a state constitution or state law contrary to the U.S. Constitution
is null and void. Thus, from the
beginning the U.S. Constitution (and its amendments, the Bill of Rights) clearly
applied to state governments, and via
state preemption, to local governments
– not just to the federal
government.
Only First Amendment specifies
restriction on new federal government
Turning
to the first ten Articles of Amendment to the Constitution (which we call the
Bill of Rights), there is only one article that – as it was written —
describes itself as a restriction on the federal government. That is the First
Amendment, which begins with the words “Congress shall make no law…”. None of the other nine amendments specify Congress (i.e. the federal
government) as the entity to which it applies. Instead, they are all
general statements about individual rights (and also about state rights in
the case of the Tenth Amendment).
The Founders were so
concerned about protecting certain basic rights that they specifically included
them as part of the Constitution. Common sense tells us that they would have
been against allowing local or state governments to abrogate those same rights.
So why did they specifically restrict application of the First Amendment to
Congress (i.e. the federal government), thus allowing the possibility that the
states might pass laws violating those rights?
The
restricted scope of the First Amendment simply reflects two overriding political
realities of the time. First,
the states were the primary political units, and the inhabitants of each state
were in general bound together by common geography, history, culture, origin,
and religion. Second, there was a keen, universal fear of all-powerful central
governments. Together these two factors manifested themselves as State A’s
hostility toward letting State B – much less an overbearing federal government
– interfere in particular areas of
State A’s internal matters. Judging from the plain wording of the First
Amendment, it is clear that letting outsiders make laws in the particular areas
of religion, free speech, the press, public assembly, and petitioning the
government was completely unacceptable to the states, but letting their own
state governments make laws in those areas was acceptable, or at least was of no
great concern. And it is just as clear that in areas where there was no
argument about a particular right, the relevant Amendment was worded in a
general manner.
There
seems to be no other reasonable explanation as to why the First Amendment is
worded so differently from the others. This explanation is supported by taking
into account the significant differences in culture and religion – two
extremely powerful forces with respect to shaping state governments – existed
from one state to another. For example, agrarian, spiritually-oriented Quaker
leaders of Pennsylvania could not stomach the thought of urban, mercantile,
secular New Yorkers sticking their noses, via the particular areas outlined
above, into Pennsylvania’s business.
BOR preamble does not exclude
application to states
Some argue that the
preamble to the Bill of Rights
“proves”
that they intended it to
apply only to the federal government. That preamble states in part:
“The
Conventions of a number of the States having, at the time of adopting the
Constitution, expressed a desire, in order to prevent misconstruction or abuse
of its powers, that further declaratory and restrictive clauses should be added,
and as extending the ground of public confidence in the Government will best
insure the beneficent ends of its institution;…”
Those
words do support the view that the BOR was intended to restrict the Federal
government. But they don't prove that the BOR was intended to exclusively
apply to the federal government.
Consider
this: At the time the BOR was written, there was no federal militia. There were only state militias which together constituted the American militia. So
when the Second Amendment says "A well regulated militia, being necessary
to the security of a free state..." to whom, exactly, is the amendment
directing its prohibition about not disarming the people? Of course it must
directing the prohibition to the states
-- the only entities with militias.
If
this were not so, then federal constitution would be telling the federal
government not to disarm people because it would destroy the
"necessary" militias -- but would allow
the states to disarm the people and destroy those same "necessary"
militias. This is absurd!
People
who quote the BOR’s preamble often leave out the rest of the preamble, which
says: "Resolved, by the Senate and House of Representatives of the United
States of America, in Congress assembled, two-thirds of both Houses concurring,
that the following articles be proposed to the Legislatures of the several
States, as amendments to the Constitution of the United States; all or any of
which articles, when ratified by three-fourths of the said Legislatures, to be
valid to all intents and purposes as part of the said Constitution, namely:
[followed by the actual amendments]"
Now
the founders are clearly saying that these amendments will become part of the
Constitution, and therefore the supreme law of the land, and therefore will override,
according to the clear words of Article VI, all state constitutions and laws.
People give the
Founders too little credit for looking ahead, when a reading of their
contemporary thoughts and the Constitutional debates shows that they
consistently looked ahead to worst-case scenarios, then worded the Constitution
in a way that they felt would deal with these situations.
William
Rawle and View of the Constitution
Let
us apply common sense again to the question “Did the Founders intend for the
Bill of Rights to apply to the states?” From the beginning it was understood
by those who wrote the Constitution that every American was to be a citizen of
both his state and the United States.
It strains credulity to believe that none of them wondered, “Since the
Constitution is the supreme law of the land, what if a state passes a law
abrogating an article in the Bill of Rights?” Of course they asked that question, and they knew the response:
Article VI, Section 2. They knew that
if, for example, the state of Massachusetts decided to force confessions from
suspects, or if Virginia decided to disarm its citizenry, or if
Maryland decided to raid its citizens’ homes without warrants, or if
New York attempted to try someone twice for the same crime, such actions would
be ruled illegal under the Constitution.
Proof
of this understanding is contained in a passage from William Rawle. In his book
View of the Constitution, published in 1829, Rawle wrote about the Second
Amendment: “No clause in the Constitution could by any rule of construction be
conceived to give the Congress a power to disarm the people. Such a flagitious
attempt could only be made under a general pretence [sic]
by a state legislature. But if in any pursuit of an inordinate power either
should attempt it, this amendment may be
appealed to as a restraint on both.” (My italics).
In
other words, Rawle says that the Second Amendment may be used as a legal
argument to quash an attempt by either Congress
or a state legislature to disarm the
people. It cannot be any clearer that Rawle – a contemporary of the Founders and the man to whom George
Washington offered an appointment as the first U.S. Attorney General –
understood that the Second Amendment (and by extension the entire Bill of
Rights) applied to the state governments as well as to the federal government.
Keep in mind that View of the Constitution
was the standard constitutional law text at Harvard until 1845 and at Dartmouth
until 1860.
The Fourteenth Amendment
Finally,
some people point to the 14th Amendment as proof that all parts of
the Bill of Rights were not – up to the time the 14th Amendment was
ratified – considered as applying to the states. But this argument is
irrelevant with respect to what we are trying to determine, which is what the Founders
intended.
More
than anything, the Fourteenth Amendment (ratified in 1868, three years after the
end of the Civil War) is a reiteration of what is obvious under the
Constitution’s Article VI, Section 2. It was intended as a tool – the final
word in the matter – to combat
Southern Caucasians’ hostility toward, and resistance to, the Federal
government and to the full citizenship of the
now-freed slaves. It did this by crushing any argument about the application of
the Bill of Rights to the states, thereby nullifying any existing Supreme Court
decisions, state laws, local laws, or local practices that discriminated against
Negroes.
James Madison, Constitution’s
architect, makes it clear
The
man most involved in writing the Constitution, James Madison, had this to say
when presenting points for and against amending the Constitution by adding a
Bill of Rights:
"It
may be said, because it has been said, that a bill of rights is not necessary,
because the establishment of this government has not repealed those declarations
of rights which are added to the several state constitutions: that those rights
of the people, which had been established by the most solemn act, could not be
annihilated by a subsequent act of the people, who meant, and declared at the
head of the instrument, that they ordained and established a new system, for the
express purpose of securing to themselves and posterity the liberties they had
gained by an arduous conflict.
“I
admit the force of this observation, but I do not look upon it to be conclusive.
In the first place, it is too uncertain ground to leave this provision upon, if
a provision is at all necessary to secure rights so important as many of those I
have mentioned are conceived to be, by the public in general, as well as those
in particular who opposed the adoption of this constitution. Beside
some states have no bills of rights, there are others provided with very
defective ones, and there are others whose bills of rights are not only
defective, but absolutely improper; instead of securing some in the full extent
which republican principles would require, they limit them too much to agree
with the common ideas of liberty." (My italics.)
Here,
Madison is arguing for adding a
national bill of rights by pointing out
that some states have insufficient bills of rights. The logical implication
is that this national bill of rights will correct
the problem of states that have insufficient bills of rights. Therefore, he is
acknowledging that the national bill of rights will apply to the states.
A
final point: yes, most of the contemporary discussion on the Constitution
concerned restraining the new federal government. But that does not mean that
the Framers were not cognizant of the fact that the Constitution, by its
supremacy, could and would restrain state governments, too.
Madison,
presenting Congress with points for and against a Bill of Rights:
"It
may be said, because it has been said, that a bill of rights is not necessary,
because the establishment of this government has not repealed those declarations
of rights which are added to the several state constitutions: that those rights
of the people, which had been established by the most solemn act, could not be
annihilated by a subsequent act of the people, who meant, and declared at the
head of the instrument, that they ordained and established a new system, for the
express purpose of securing to themselves and posterity the liberties they had
gained by an arduous conflict.
“I
admit the force of this observation, but I do not look upon it to be conclusive.
In the first place, it is too uncertain ground to leave this provision upon, if
a provision is at all necessary to secure rights so important as many of those I
have mentioned are conceived to be, by the public in general, as well as those
in particular who opposed the adoption of this constitution. Beside some states
have no bills of rights, there are others provided with very defective ones, and
there are others whose bills of rights are not only defective, but absolutely
improper; instead of securing some in the full extent which republican
principles would require, they limit them too much to agree with the common
ideas of liberty."
It
is perfectly clear that he believes a national bill of rights will correct the
fact of non-existent or defective state BOR's. Therefore he is clearly implying
that a federal BOR will apply to the
states.
