What is the Bill of Rights?
The federal Bill of Rights is a superfluous restraint on federal legislative power. The Bill of Rights did not change the original Constitution in any substantive way. The Constitution would mean the same thing today had the Bill of Rights never been ratified. The Bill of Rights made the implicit logic of the Enumerated Powers structure explicit in the Constitution. The Bill of Rights is a shield the states erected against the federal government to ensure the federal government would not become what it’s opponents and skeptics feared: a centralized, national government with unlimited power.
Logic of the Federal Bill of Rights
Here’s how the logic of the federal Bill of Rights works:
– If Congress passes a law, is the law pursuant to Congress’ Enumerated Powers in Article 1, Section 8? If the law is pursuant to one of the delegated, Enumerated Powers, then the law is constitutional. If the law is not pursuant to one of the delegated, Enumerated Powers, the law is unconstitutional. That’s the end of the analysis.
– Where does the federal Bill of Rights come in? Let’s say Congress passes a law that makes it a crime to criticize the President. Congress has no delegated, Enumerated Power over freedom of speech or of the press. As such, the law would be unconstitutional. However, the First Amendment would also explicitly protect freedom of speech from being abridged by the federal government. As such, the Bill of Rights explicitly protects certain rights the federal government never had authority to interfere with in the first place. But let’s say the First Amendment did not exist. The Ninth Amendment says that just because certain rights (e.g., Amendments one through eight, along with Article 1, Section 9) have been explicitly protected from federal interference, does not mean the list of protected rights is complete. In other words, the Ninth Amendment says the rights of the people protected from federal interference cannot be listed in their entirety. The Tenth Amendment then tells Congress, go back, look at, and stick to your Enumerated Powers. Any power not delegated to the federal government is reserved to the states or to the people of each state, respectively.
Bill of Rights Only Applies Against the Federal Government
The federal Bill of Rights only applies against the federal government. The Bill of Rights does not apply against the state governments. Any constitutional restriction imposed upon the states begins by stating, “No state shall,” or “No state shall, without the consent of Congress.” Any federal Constitutional provisions expressed in general terms are referring to the federal government as the actor. To clarify this point, compare and contrast the language between Article 1, Sections 9 and 10. Article 1, Section 9 says, “No Bill of Attainder or ex post facto Law shall be passed.” This provision explicitly restricts the federal government. Contrast with Article 1, Section 10, which says, “No State shall… pass any Bill of Attainder, ex post facto Law…” This provision explicitly restricts the state governments. Note, every amendment in the Bill of Rights is expressed in general terms, with the one exception being the First Amendment… which explicitly mentions Congress. The First Amendment begins, “Congress shall make no law…”
Chief Justice John Marshall wrote many poor opinions in his time, but he actually got one right in Barron v. Baltimore, 1833, making it very clear the federal Bill of Rights did not apply against the state governments. The decision is short and very much worth reading.
In part, Marshall said, “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.”
Why Did the State Ratifying Conventions Demand a Federal Bill of Rights?
Many Americans of the founding generation were concerned the Constitution would be misconstrued to create a centralized government with unlimited power. Representatives in the several state ratifying conventions all proposed amendments to ensure the power of the federal government could not expand beyond its delegated powers. This sentiment was expressed in the overlooked and largely unknown preamble to the federal Bill of Rights, which says,
“THE Conventions of a number of the States, having at the time of their 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 ensure the beneficent ends of its institution.”
The preamble’s reference to “its powers” is referring to the powers of the federal government. Clearly Americans at that time would be horrified to learn that many Americans today think the Constitution is a “living document.”
Was a Bill of Rights Necessary?
In Federalist 84, Alexander Hamilton raised the question of whether a federal Bill of Rights was necessary, and whether it might even be dangerous. Hamilton asked, “…why declare that things shall not be done [by Congress] which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [to Congress] by which restrictions may be imposed?” According to Hamilton, a federal Bill of Rights would, “contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more [powers] than were granted. . . . [it] would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”
The way to summarize Hamilton’s “concerns” would be: Why add an amendment preventing Congress from abridging my right to play the piano when the Constitution gives Congress no authority to abridge my right to play the piano in the first place?
To allay concerns raised by Hamilton, namely that the federal government would use a Bill of Rights as a pretext to claim powers not delegated, the Ninth Amendment was added. Applying the Ninth Amendment to our piano example, we would say just because playing piano is listed as a protected right, and playing football is not, does not mean we don’t also have a protected right to play football.
Perversion of the Bill of Rights
So why do textbooks and teachers say the federal Bill of Rights “protect” our fundamental rights? Beginning in the early 20th century, the United States Supreme Court began applying the federal Bill of Rights against the state governments. To achieve this monumental and Orwellian power grab by the federal courts, the Supreme Court created a judicial doctrine known as the “Incorporation Doctrine.” There is a special page on this site that discusses this doctrine that arose out of an intellectually dishonest “interpretation” of the Fourteenth Amendment.
Examples of the perverse consequences of applying the federal Bill of Rights against the state governments will be discussed in the following Amendment sections: First Amendment; Second Amendment; Fourth Amendment; Fifth Amendment; Ninth Amendment; Tenth Amendment.
Historical Note – Bill of Rights Contained Twelve Amendments – Only Ten Were Ratified by the States
The federal Bill of Rights, proposed by Congress to the states on March 4, 1789, contained twelve amendments. These amendments were known as “Articles.” Articles One and Two were not ratified with the other Ten Articles. Articles Three through Twelve were ratified and became known as Amendments One through Ten. For example, Article Three became the First Amendment, and Article Twelve became the Tenth Amendment.
United States Constitution – Bill of Rights – First Ten Amendments
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their 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 ensure the beneficent ends of its institution.
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; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.