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statement appeared in a recent issue of The New American, a publication which usually seems trustworthy in its historical content: “As a result, [the Founders] made the Bill of Rights applicable only to the federal government, not to state or local governments.”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 14^th Amendment as proof that all parts of the Bill of Rights were not – up to the time the 14^th 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."