The Bill of Rights Was Never Intended for the States

by

        M. Richard Maxson

      Our rights as Americans are not granted to us by the government. The Constitution never speaks of granting rights, but only protecting them. Moreover, the

Constitution, including the Bill of Rights, hardly includes any “right” that had not already been recognized at one time or another by medieval English monarchs or in ancient Rome and Greece. Our government is empowered by us on the condition it does not infringe upon the rights with which we were born. The First Amendment, for example, is explicit in how it starts, “Congress shall make no law…” The rights to free speech, freedom of religion, the press, assembly, etc., are not granted by the Constitution, they are protected from government by it. At the time of ratification, the first ten amendments known as the Bill of Rights, are the accepted rights of man under this country’s federal law.
       

       The Founders realized that mankind had certain rights at birth. The Bill of Rights was not to “give” rights but was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the federal government. Notice the word “government” is not plural. The state ratifying conventions had no intention of restricting their state’s own powers.                  A lot of people believe that the Bill of Rights always applied to state governments. This is simply not true. It was not a feature of the original Constitution. The preamble of the Bill of Rights makes no mention of limiting the power of state governments. It was never intended to apply to state or local governments. They already had state constitutions to do that job. The preamble to the Bill of Rights makes its purpose absolutely clear: to further restrict federal government power. The Bill of Rights was never intended to bind the actions of state governments.

      Between 1776 and 1789 seven of the 13 states of the newly independent United States of America adopted a “bill of rights” as part of their state constitutions, and the remaining six included elements of the English Bill of Rights in the bodies of their constitutions. This is an undebatable fact — no founding-era evidence exists that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind state governments. Doing so would have essentially created a federal veto over state laws.

          So why do we hear of “rights” on the state and local levels? The federal courts enforce the Bill of Rights on the states today through a legal framework known as the incorporation doctrine. It came about through a series of federal court cases based on the 14th Amendment.          In a affront to the Constitution, the Supreme Court invented the incorporation doctrine through the 14th Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment. There is some basis to argue that the 14th Amendment was intended to incorporate the Bill of Rights onto the states. The operative clause of the amendment reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The question is: are the provisions of the Bill of Rights included in the 14th Amendment’s “privileges and immunities?” To originalists the answer is no.

    The founding generation warned us over and over again about consolidating the states into a single national government. It was the greatest fear voiced by opponents of the Constitution during ratification and was a prime reason for the inclusion of the Bill of Rights.