Tuesday, November 20, 2007

Bill of Rights and the States

Did the founders intend to apply the Bill of Rights restrictions on the States?
 
In 1833, the USSC heard a case called Barron v. Baltimore, in which the plaintiff argued that an action by Maryland violated the 5th Amendment takings prohibition.  While the ruling itself was that the 5th Amendment did not apply to the states (and specifically the takings clause), the dicta in the case indicates that the entire bill of rights was intended as a restriction on the federal government only:  the states were free to set up their own restrictions, as they had before the Constitution.
 
Since that decision, no case applied any of the restrictions in the Bill of Rights against the states, until long after the 14th amendment, and only did so through the Selective Incorporation Doctrine.
 
The Selective Incorporation Doctrine itself is one of the more convoluted steps of jurisprudence in our history.  The USSC missed the opportunity in the Slaughterhouse Cases to say that the 14th Amendment Privileges and Immunities Clause is the basis for incorporating the Bill of Rights, which at least seems to make linguistic sense (though the post civil war era Congress could easily have written "the 1st through 8th Amendments are applicable against the States if that is what they meant"), and instead have interpreted a nebulous "Due Process" clause to mean that the USSC gets to determine which Rights are incorporated, and to what degree.
 
In Barron, Marshall said:
 

The judgment brought up by this writ of error having been rendered by the court of a State, this tribunal can exercise no jurisdiction over it unless it be shown to come within the provisions of the 25th section of the Judiciary Act. The plaintiff in error contends that it comes within that clause in the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.

 

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

 

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

...

Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

 

But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

 

The Second Amendment, then, being part of the Bill of Rights that was intended only to restrict the Federal Government, was never intended to restrict State governments from regulating or even banning arms.  Whether the USSC will decide to incorporate the 2nd amendment using the 14th Amendment is not clear, but if it does, it will not be because the Founders of the Bill of Rights intended it to be so.

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